8157 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 IN AND FOR THE COUNTY OF SANTA BARBARA 3 SANTA MARIA BRANCH; COOK STREET DIVISION 4 DEPARTMENT SM-2 HON. RODNEY S. MELVILLE, JUDGE 5 6 7 THE PEOPLE OF THE STATE OF ) 8 CALIFORNIA, ) 9 Plaintiff, ) 10 -vs- ) No. 1133603 11 MICHAEL JOE JACKSON, ) 12 Defendant. ) 13 14 15 16 17 REPORTER’S TRANSCRIPT OF PROCEEDINGS 18 19 FRIDAY, APRIL 29, 2005 20 21 8:30 A.M. 22 23 (PAGES 8157 THROUGH 8202) 24 25 26 27 REPORTED MICHELE MATTSON McNEIL, RPR, CRR, CSR #3304 28 BY: Official Court Reporter 8157 1 APPEARANCES OF COUNSEL: 2 3 For Plaintiff: THOMAS W. SNEDDON, JR., 4 District Attorney BY: RONALD J. ZONEN, 5 Sr. Deputy District Attorney -and- 6 GORDON AUCHINCLOSS, Sr. Deputy District Attorney 7 1112 Santa Barbara Street Santa Barbara, California 93101 8 9 10 For Defendant: COLLINS, MESEREAU, REDDOCK & YU 11 BY: THOMAS A. MESEREAU, JR., ESQ. -and- 12 SUSAN C. YU, ESQ. 1875 Century Park East, Suite 700 13 Los Angeles, California 90067 14 -and- 15 SANGER & SWYSEN BY: ROBERT M. SANGER, ESQ. 16 233 East Carrillo Street, Suite C Santa Barbara, California 93101 17 18 19 For Witness DAVIS WRIGHT TREMAINE LLP 20 Ian Drew: BY: KELLI L. SAGER, ESQ. 865 South Figueroa Street 21 Suite 2400 Los Angeles, California 90017-2566 22 23 24 25 26 27 28 8158 1 I N D E X 2 3 Note: Mr. Sneddon is listed as “SN” on index. 4 Mr. Zonen is listed as “Z” on index. Mr. Auchincloss is listed as “A” on index. 5 Mr. Mesereau is listed as “M” on index. Ms. Yu is listed as “Y” on index. 6 Mr. Sanger is listed as “SA” on index. 7 8 9 PLAINTIFF’S WITNESSES DIRECT CROSS REDIRECT RECROSS 10 11 SMITH, Rosibel Ferrufino 8162-Z 12 (Nonjury) 13 BONNER, Craig 8184-Z 8185-SA (Re-called) 14 KOONS, Harry 8190-Z 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8159 1 E X H I B I T S 2 FOR IN PLAINTIFF’S NO. DESCRIPTION I.D. EVID. 3 4 841 Book entitled “Boys Will Be Boys” 8163 5 842 Book entitled “The Boy; 6 A Photographic Essay” 8163 7 856 Photograph 8164 8166 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8160 1 Santa Maria, California 2 Friday, April 29, 2005 3 8:30 a.m. 4 5 (The following proceedings were held in 6 open court outside the presence and hearing of the 7 jury:) 8 9 THE COURT: Good morning. 10 COUNSEL AT COUNSEL TABLE: (In unison) 11 Good morning, Your Honor. 12 THE COURT: Let’s see. I understand that the 13 District Attorney has requested the out-of-presence 14 hearing on the foundation on the books. 15 MR. ZONEN: Yes, Your Honor. 16 THE COURT: What exhibit number is that? 17 MR. ZONEN: No. 841 and 842. 18 THE COURT: All right. I did review those 19 materials, as I had requested. I did get the 20 materials, and I looked at those books and indicated 21 that there must be further foundation. 22 Are you prepared to go forward with that? 23 MR. ZONEN: I am, Your Honor. Foundation 24 with regards to where seized, do you mean? 25 THE COURT: Yes. Connecting -- 26 MR. ZONEN: Yes, we’re prepared to do that 27 at this time. 28 We’ll call Detective Rosibel Smith to the 8161 1 stand. 2 THE COURT: When you get to the witness 3 stand, remain standing and face the clerk. 4 5 ROSIBEL FERRUFINO SMITH 6 Having been sworn, testified as follows: 7 8 THE WITNESS: I do. 9 THE CLERK: Please be seated. State and 10 spell your name for the record. 11 THE WITNESS: Rosibel, R-o-s-i-b-e-l; 12 Ferrufino, F-e-r-r-u-f-i-n-o; Smith, S-m-i-t-h. 13 THE CLERK: Thank you. 14 15 DIRECT EXAMINATION 16 BY MR. ZONEN: 17 Q. Tell us your current occupation. 18 A. I’m a police detective for the Los Angeles 19 Police Department currently assigned to the Threat 20 Management Unit of the Detective Support Division. 21 Q. How long have you been a police officer for 22 the City of Los Angeles? 23 A. For a little over 20 years. 24 Q. And your current assignment involves what? 25 A. Aggravated stalking cases, criminal threats 26 of elected officials, and workplace violence 27 incidents within the City of Los Angeles. 28 Q. Did you work also as a sex crimes 8162 1 prosecutor -- sex crimes detective? 2 A. Yes, I did. 3 Q. For what period of time? 4 A. For nine years. 5 Q. All right. Which period of nine years was 6 that? 7 A. From 1988 to 1997. 8 Q. Did you have occasion to conduct and execute 9 search warrants during that time? 10 A. Yes, I did. 11 Q. In August of 1993, did you participate in 12 the execution of a search warrant at Neverland Ranch 13 in Los Olivos, the County of Santa Barbara? 14 A. Yes, I did. 15 Q. And did you seize objects from that 16 residence during that search? 17 A. Yes. 18 MR. ZONEN: May I approach the witness? 19 THE COURT: Yes. 20 Q. BY MR. ZONEN: I’m going to show you three 21 objects at this time. Exhibits No. 841 and 842; 22 would you take a look at those two objects, please? 23 A. Okay. 24 Q. Do you recognize those two books? 25 A. Yes, I do. 26 Q. Did you seize those two books? 27 A. Yes, I did. 28 Q. From where? 8163 1 A. These books were seized from a cabinet 2 within Michael Jackson’s closet in the master 3 bedroom. 4 Q. All right. Describe his bedroom for us, 5 please. 6 A. The bedroom is a very large -- 7 MR. SANGER: Your Honor, I think it would be 8 cumulative at this time, wouldn’t it? 9 THE COURT: Sustained. 10 Q. BY MR. ZONEN: All right. Tell us where in 11 his bedroom this particular closet is. 12 A. It was off to the side of the main bedroom. 13 There were -- actually, there were two closets on 14 either side of the room, and this would have been 15 the side where the Jacuzzi was located. 16 Q. Now, this is the first floor of his bedroom 17 suite; is that right? 18 A. That’s correct. 19 Q. Was there a bed in that bedroom suite? 20 A. Yes. 21 Q. I’m going to show you Exhibit No. 856. 22 A. Okay. 23 Q. Do you recognize that photograph? 24 A. Yes, I do. 25 Q. And that photograph is what? 26 A. This is a photograph that was taken during 27 the search warrant of Neverland Ranch, and it 28 depicts the file cabinet that the books were seized 8164 1 from. 2 Q. All right. And is that file cabinet 3 depicted in that photograph? 4 A. Yes, it is. 5 Q. How many drawers in that file cabinet? 6 A. Four. 7 Q. In which drawer were those two books seized, 8 from which drawer? 9 A. From the third drawer. 10 Q. Was that file cabinet locked? 11 A. Yes, it was. 12 Q. How were you able to unlock it? 13 A. We were able to get the key from -- the maid 14 brought the key over to the home and we were able to 15 unlock it at that time. 16 Q. Do you remember which maid that was? 17 A. I believe it was Blanca Francia. 18 Q. Thank you. Is that photograph -- does that 19 photograph accurately depict the subject matter 20 contained within it? 21 A. Yes, it does. 22 MR. ZONEN: Move to introduce 856 into 23 evidence. 24 MR. SANGER: For the purposes of? 25 MR. ZONEN: For the purposes of this 26 hearing. 27 MR. SANGER: For this hearing, I have no 28 objection. 8165 1 THE COURT: Then it’s admitted for the 2 purposes of the hearing. 3 MR. ZONEN: And I have no further questions 4 as to foundation for this witness. 5 THE COURT: Cross-examine? 6 MR. SANGER: May I approach the witness to 7 take a look at the exhibits, please? 8 THE COURT: Yes. 9 MR. SANGER: And I have no questions for the 10 purpose of this hearing. 11 THE COURT: All right. 12 MR. ZONEN: I would move to introduce into 13 evidence 841, 842 as well. 14 MR. SANGER: Well, and I suppose that’s the 15 purpose of the hearing, Your Honor. We had 16 previously objected, and -- excuse me one second. 17 We still object on the grounds that this is 18 remote in time. We have books from -- seized in 19 1993 with regard to events that allegedly occurred 20 in 2003, so the probative value of these books is 21 minimal at best, and it’s outweighed by the 22 confusion to the jury, prejudicial effect, and 23 everything else. There’s got to be some connection 24 in time. It’s just plain stale to bring in 25 something from that far back and try to use it by 26 way of not much more than innuendo at this time. 27 These books were not shown to anybody. There’s no 28 evidence they were shown to anybody. No evidence 8166 1 they were shown to minors. They were locked in a 2 cabinet. 3 THE COURT: What about the Memro case, 4 People vs. Memro, cited by the prosecution? The 5 only relevance I see would be to the 1108 evidence 6 that was introduced as these books could be viewed 7 as supportive of the other 1108 evidence. That’s 8 what I think their purpose of introducing the books 9 is. 10 MR. SANGER: Well, I think that is. I mean, 11 I can’t imagine what else it would be. That’s what 12 I’m saying. In other words, there’s no evidence 13 that these books, or any of the other books, the 14 actual books that were seized, many of which, or all 15 of which the Court has allowed from the 2003 time 16 period, there’s no evidence that they were shown to 17 any of the people in this case. Not shown to 18 minors. They weren’t used for any purpose. They’re 19 just shown -- they’re -- I’m sorry. They were 20 offered to show that Mr. Jackson had these materials 21 in his house. I think the Court’s now heard all the 22 testimony. I think it’s very minimal weight even 23 for the 2003 materials. 24 And so my concern is that while Memro might 25 talk about allowing this kind of evidence to show 26 that the -- that the individual had this evidence in 27 his possession at the time of the offense, this 28 isn’t the time of the offense. This is ten years 8167 1 before. And it’s locked in a file cabinet. So not 2 only do you not have it being used for any untoward 3 purpose, but it’s simply possessed and it’s 4 possessed in a secure fashion, and it’s possessed 5 ten years before any events in this case. 6 It just seems to me that at some point the 7 Court has to draw the line. And the Court has, of 8 course, been drawing lines throughout this trial as 9 to what has the kind of probative value that should 10 come before the jury and what doesn’t. 11 And I think that, given the fact that the 12 only materials that there’s any evidence were shown 13 or seen by minors in this case are adult 14 heterosexual magazines that are lawful to possess by 15 adults, the fact that they have attempted to 16 introduce from a giant library of books any book 17 that might have a page or two or five or ten of 18 individuals who are not fully clothed is -- I think 19 it’s just an effort to prejudice the jury. So -- 20 THE COURT: But the Memro case isn’t about 21 showing the material to anybody. It’s about having 22 the material and allowing it to be introduced as 23 evidence that the defendant may have some proclivity 24 to the type of sexually explicit material that we’re 25 dealing with. 26 So it’s not a question -- you know, one of 27 the issues in this case presently is about whether 28 he showed children that material. But another 8168 1 reason the material’s admissible is that it relates 2 to his state of mind. And that’s why they’re 3 offering it, according to their proffer. 4 MR. SANGER: Right. I understand that. And 5 maybe I’m not being clear. But what I’m saying is, 6 yes, there is no showing that it applies to the 7 other purpose. So therefore, it’s evidence to show 8 that it’s being offered to show that the person who 9 possessed it has an interest in these materials. 10 And if that’s all it is, then my position is that 11 because it’s ten years old, the probative value is 12 very, very weak. 13 THE COURT: If it’s offered to show that he 14 had that interest at the time of the 1108 15 allegations, that’s the probative value. 16 MR. SANGER: And -- 17 THE COURT: And you say that’s -- 18 MR. SANGER: And I’m saying that’s very, 19 very weak. 20 THE COURT: I just want to be sure we’re 21 seeing it the same way, and I think we are. Okay. 22 MR. SANGER: Yes. And I apologize for not 23 being more direct in answering the Court’s 24 questions. 25 But I guess what I’m saying, at some point 26 you have to draw the line there. In other words, 27 this case really isn’t about 1993. 1108 only allows 28 that to come in for really a limited purpose. 8169 1 THE COURT: True. 2 MR. SANGER: And now we are embellishing the 3 limited purpose that’s already pretty remote. And 4 as the Court acknowledged from the beginning, the 5 real question is whether or not this kind of 6 material is going to be so prejudicial when the jury 7 is considering the strength of the case that was 8 presented as to the charged events. And the 9 strength of the case presented as to the charged 10 events is, I submit, much weaker than it was led 11 to -- the Court was led to believe at the time of 12 the 1108 ruling. 13 In other words, Your Honor had heard some of 14 the evidence, but you hadn’t heard all of the 15 evidence. You’ve heard more evidence and it’s 16 gotten worse for the prosecution. Their current 17 case is very weak. This is just an attempt to 18 further bolster that with what is remote. And I 19 understand the Court’s theory, and -- the 20 prosecution’s theory, let’s put it that way, and the 21 Court’s acknowledgement of that theory. And that’s 22 my point; it is remote. It’s to bolster 1108. And 23 1108 is to bolster this case. It’s too far afield. 24 THE COURT: Okay. I understand your argument 25 now. 26 MR. SANGER: Yes. Thank you, Your Honor. 27 THE COURT: Do you wish to respond, Mr. 28 Zonen? 8170 1 MR. ZONEN: If the Court would like, yes. 2 Just briefly, Your Honor, the books that 3 were seized in 1993 were seized at a time that was 4 contemporaneous with the evidence presented pursuant 5 to 1108. There were four young boys who were 6 involved in Michael Jackson’s life. It’s 7 interesting and unique that the maid who was called 8 to open up this file cabinet was, in fact, the 9 mother of one of those victims at that time. 10 Those books -- one of the books -- both of 11 the books are pictorial essays of adolescent boys. 12 One of them, about 10 percent of the photographs are 13 completely nude boys. And the other one, 90 percent 14 of the photographs are completely nude boys. The 15 possession of those books by Mr. Jackson, we 16 believe, is evidence of a prurient interest in 17 adolescent boys and it’s exactly contemporaneous 18 with the state of the evidence as to all of the 1108 19 witnesses. Therefore, we believe it adequately 20 corroborates within the meaning of People vs. Memro. 21 We’d ask that it be admitted. 22 THE COURT: All right. I want to think about 23 this issue a little further. I’m not ready to make 24 a decision on that. 25 MR. SANGER: Your Honor, could I -- I know 26 we go back and forth, and I can’t really tell who 27 started and if I get a brief rebuttal. But could I 28 be permitted to make one remark? 8171 1 THE COURT: Yes. 2 MR. SANGER: Thank you. 3 When the Court looks at the evidence, I’d 4 ask the Court to look at the inscription in the 5 inside of the first book, which is “Boys Will Be 6 Boys.” And I don’t know -- 7 THE COURT: Do you want to get the book for 8 me and I’ll look at it? 9 MR. SANGER: Yes. I take it I may approach. 10 THE COURT: You may, yes. You may retrieve 11 the exhibits. Bring both of them. You might as 12 well bring both of them. 13 Officer, I think I let you sit there a 14 little longer because I wasn’t sure that someone 15 might want to ask you another question. But I don’t 16 think that’s necessary, so you may step down. 17 THE WITNESS: Thank you, sir. 18 MR. ZONEN: Your Honor, if we’re going to -- 19 if the debate is going to go beyond the location of 20 where the books are seized -- 21 THE COURT: Cross-examination is over. The 22 argument’s not there in that area. 23 Am I missing something? 24 MR. ZONEN: No. My understanding was the 25 debate was over the location of the books. 26 THE COURT: No, no. The debate -- I said I 27 wanted further foundation. I wanted to look at the 28 books, and I wanted foundation. There was no 8172 1 debate. That was my request. 2 MR. ZONEN: That’s fine. 3 THE COURT: Now I have what I want. I still 4 have to make a decision. 5 MR. ZONEN: That’s fine. That’s fine. 6 THE COURT: Now, what was your reference? 7 MR. SANGER: I don’t know which number is 8 which, but the one that’s entitled “Boys Will Be 9 Boys.” 10 THE COURT: Yes. 11 MR. SANGER: Which I think is 841, but I’m 12 not positive. 13 THE COURT: It’s 841. 14 MR. SANGER: Okay. On 841, if you look at 15 that, it appears to be Mr. Jackson’s own 16 inscription, and he says, “Look at the true spirit 17 of happiness and joy in these boys’ faces. This is 18 the spirit of boyhood, a life I never had and will 19 always dream of. This is the life I want for my 20 children. M.J.” 21 The other book, which would be 842, appears 22 to be inscribed by a female fan, and it appears to 23 have been sent to Mr. Jackson by a fan of some sort. 24 That’s the interpretation I take from that 25 inscription. 26 THE COURT: Well, there is an inscription, 27 “To Michael. From your fan.” 28 MR. SANGER: Yes. 8173 1 THE COURT: “Love” -- “XXXOOO” - I was going 2 to interpret that, but I won’t - “Rhonda.” 3 I know what I mean when I put “XXXOOO.” 4 MR. SANGER: And I have noted Your Honor has 5 never put that on any of your rulings in this case. 6 (Laughter.) 7 THE COURT: I can’t top that. 8 All right. Then that hearing -- at this 9 point, I’m going to take that under submission, and 10 we’ll rule on that before the People rest. 11 And if you’re about to rest and I haven’t 12 ruled it, tell me. Remind me. 13 MR. ZONEN: Did you mean rest the case or 14 rest today? 15 THE COURT: Rest the case. 16 MR. ZONEN: All right. The witnesses are 17 here today. Are they not going to be testifying 18 today? If they are not, I will go ahead and excuse 19 them. 20 THE COURT: They can’t hear you. 21 MR. ZONEN: I’m sorry. 22 THE COURT: What witnesses? 23 MR. ZONEN: The witness who seized the book 24 presumably would be testifying as to where and what 25 she seized in the course of the trial before the 26 jury. 27 THE COURT: Oh, I see. You need it for that 28 purpose? 8174 1 MR. ZONEN: Yeah. If we’re not going to do 2 that today, I’ll go ahead and excuse her and have 3 her come back. 4 THE COURT: No, we can do that today. 5 MR. ZONEN: We could put her to the end of 6 the witness list. 7 THE COURT: We could put her to the end of 8 the morning. 9 MR. ZONEN: Your Honor, there was one other 10 matter, a motion that was filed by an attorney who 11 represents one of the witnesses to be called today. 12 Did the Court want to address that at this time? 13 THE COURT: Yes. That’s the Drew witness? 14 MR. ZONEN: Yes, Your Honor. 15 THE COURT: Is that witness present? 16 MR. ZONEN: The witness is present, out of 17 the courtroom, and counsel is present before you. 18 MS. SAGER: Good morning, Your Honor. Kelli 19 Sager on behalf of Ian Drew, a nonparty reporter. 20 THE COURT: Good morning. 21 MS. SAGER: We had filed a short memorandum 22 with the Court concerning Mr. Drew’s testimony 23 largely to give the Court some guidance and 24 background, which I understand has already come up 25 once in this case, as to the scope of the reporter’s 26 privilege under the California Constitution and the 27 First Amendment and the common law. 28 Mr. Drew is being called by the prosecution, 8175 1 as I understand it from Mr. Zonen, to repeat 2 information that has been published by him in a 3 television broadcast. And I assume that Mr. Zonen 4 still intends to limit his questioning to the 5 published material. It nonetheless raises an issue 6 as to cross-examination. And in the Foss case, 7 which we cited in our papers, if it appears that the 8 defendant’s cross-examination would intrude into 9 privileged areas, then it’s advised that the Court 10 address that at the outset, because it may be that 11 if the defendant is not going to be permitted to 12 cross-examine into those areas, that the original 13 testimony should not be permitted either. 14 In either case, I just wanted to make sure 15 the Court was apprised that the witness does intend 16 to assert his rights as to unpublished information 17 or confidential source information and to ask the 18 Court’s permission to be making objections on his 19 behalf. 20 THE COURT: Well, you have my permission to 21 do that. 22 MS. SAGER: Thank you. 23 THE COURT: You know, I thought your points 24 and authorities were well done and complete. 25 One of the things that you mentioned in your 26 points and authorities was that there’s a preference 27 to have a hearing outside the presence of the jury 28 before the testimony is proffered to the jury so the 8176 1 Court can determine whether or not the evidence 2 should be allowed. 3 MS. SAGER: That’s correct, Your Honor. 4 THE COURT: Based on the right of the defense 5 to cross-examine. 6 Mr. Mesereau, you wish to say -- 7 MR. MESEREAU: Yes, please, Your Honor. 8 Your Honor, as the Court knows, the 9 witness’s name came up during the testimony of -- 10 THE COURT: Just a moment. 11 Would someone create a seat there so she 12 doesn’t have to stand. 13 MS. SAGER: Thank you. Thank you, Your 14 Honor. 15 MR. MESEREAU: This witness’s name came up 16 during the testimony yesterday of Debbie Rowe. 17 THE COURT: Right. 18 MR. MESEREAU: And she did testify, among 19 other things, that he had actually interviewed her 20 at Schaffel’s house during the subject interview 21 that was talked about yesterday. 22 This witness was secretly recorded on a 23 number of occasions by Debbie Rowe at the behest of 24 the sheriffs and he also gave a police interview 25 where he talked extensively about various aspects of 26 the case, including Mr. Schaffel and others. 27 Clearly, he had a career motive in doing this. 28 Clearly, there were financial considerations 8177 1 involved, considerations involving advancing his 2 career, and clearly he wanted to be involved in this 3 case. If you look at the secretly recorded 4 conversations, you can gather a lot of his motives 5 to do what he’s doing. 6 And to permit him to testify as a 7 prosecution witness and not allow the defense to go 8 into those types of incentives to do various things, 9 say various things, appear in various places, would 10 be highly prejudicial to the defense. So allowing 11 him to just hide behind a journalistic privilege 12 every time his motives and veracity are impeached or 13 contradicted or questioned would be prejudicial to 14 us. 15 He put himself right in the middle of this 16 investigation intentionally, willingly, and 17 knowingly. Met with Mr. Klapakis for an interview, 18 talked about his knowledge of various individuals 19 and various occurrences in the case as he understood 20 them. Was recorded on a number of occasions by the 21 sheriffs because they thought he had information of 22 significance, conducted the interview. How can they 23 possibly, if he gets caught in a problem, say 24 journalistic privilege? I think that would be 25 highly inappropriate and very prejudicial to the 26 defense. 27 Thank you, Your Honor. 28 MS. SAGER: Your Honor, if I could just 8178 1 briefly respond to Mr. Mesereau’s comments. 2 Under Penal Code Section 632, I believe any 3 recordings of Mr. Drew that were done without his 4 knowledge would not be admissible for any purpose. 5 As a reporter, he’s engaged in conversations with a 6 great number of people, including Miss Rowe, as she 7 testified to, in the course and scope of his duties 8 as a reporter. The fact that those conversations 9 may have been secretly recorded without his 10 permission, without his knowledge, cannot waive any 11 privilege that he has as a journalist as to 12 information he’s attempting to gather. 13 He’s reported on Mr. Jackson. He did an 14 interview with Miss Rowe, which everyone has a tape 15 of. And as I understand it, the issue about that 16 interview has already been discussed, there have 17 been other witnesses who have testified, and the 18 tape of the entire interview is available. So 19 there’s nothing Mr. Drew can add to that equation. 20 As to his -- what Mr. Mesereau described as 21 an interview with detectives, when detectives showed 22 up, as I understand it, at Mr. Drew’s office to 23 subpoena him, he was asked about statements that he 24 had made on television, and again referred to those 25 statements that he had already made on television, 26 the published statements. 27 He didn’t have an attorney. He didn’t have 28 anyone advising him of his rights at that point, and 8179 1 again, I don’t think that could be viewed as a 2 knowing waiver of his rights. Nor is that a 3 publication within the meaning of Article I, 4 Section 2(b) of the California Constitution. He was 5 not disseminating information to the public in any 6 conversation he had with the detective who was 7 serving him with a subpoena. 8 As I understand it, there’s one statement 9 that the prosecution intends to ask Mr. Drew about, 10 and that was in this particular television broadcast 11 concerning a conversation that he had with one of 12 Mr. Jackson’s -- I don’t know how you would describe 13 him, someone that Mr. Jackson knew. That person is 14 certainly a witness who could testify as to that. 15 As I understand, it’s about whether the 16 family at issue left the ranch at some point in the 17 middle of the night. I don’t believe that’s 18 disputed. So it’s difficult for me to see what Mr. 19 Drew can add to these proceedings in any case, and 20 certainly nothing that would justify invading his 21 privilege by opening him up to questions about 22 conversations he had during the course and scope of 23 his news-gathering activities. 24 THE COURT: Mr. Zonen? 25 MR. ZONEN: Your Honor, we intend to limit 26 our inquiry to information that was disclosed by Mr. 27 Drew on national television. It’s published 28 information, therefore it’s not protected by the 8180 1 shield law. 2 THE COURT: Well, but that’s not the issue, 3 is it? I mean, that -- 4 MR. ZONEN: That’s one issue. The next 5 issue is the question of whether or not 6 cross-examination -- 7 THE COURT: Right. 8 MR. ZONEN: -- is important for impeachment. 9 We believe that the information that we are 10 going to be asking him is about a statement made by 11 another person, one of the unindicted 12 co-conspirators, to the effect that the Arvizo 13 family had fled from Neverland, and therefore Mr. 14 Drew would not be able to conduct an interview that 15 he expected to do. 16 I don’t know that the content of that 17 information requires an extensive cross-examination 18 into collateral areas. I think it can be adequately 19 cross-examined as to that statement alone without 20 going too far beyond the published information. 21 THE COURT: Well, I think what we’ll do is 22 you can call your witness, you can ask him the 23 questions, and then I’ll understand what you’re 24 going to ask him in front of the jury and what his 25 answers are going to be -- 26 MR. ZONEN: Okay. 27 THE COURT: -- and then we’ll see what -- 28 MR. ZONEN: Shall we do that at this time? 8181 1 THE COURT: -- what Mr. Mesereau wants to do. 2 Yesterday he filed a motion to prevent 3 someone from testifying and later withdrew it, 4 so.... 5 MR. ZONEN: He might wish to do that today. 6 THE COURT: I don’t know. 7 Call your witness. 8 MR. ZONEN: Did you wish to do that outside 9 the presence of the jury at this time? 10 THE COURT: Absolutely. That’s the point. 11 MR. ZONEN: Yes. We’re prepared to do that. 12 Would you call Mr. Drew down, please. 13 MS. SAGER: As I believe the District 14 Attorney knows, Mr. Drew is not in the courthouse. 15 He was told to be here at ten o’clock. 16 THE COURT: Oh, okay. 17 MS. SAGER: I was asked by Mr. Zonen’s 18 office last night to show up early in case the Court 19 wanted to hear argument on that. 20 THE COURT: That’s not a problem. We can do 21 the hearing later. 22 MS. SAGER: Okay. I will go outside, 23 though, and call him, Your Honor, and tell him to 24 come directly to the courthouse, and he’ll be 25 available whenever the Court can then hear him. 26 THE COURT: If he’s going to be here at 27 10:00, that’s fine. 28 MR. ZONEN: I don’t know that our other 8182 1 witness will necessarily go to ten o’clock. If 2 we’re not going to be dealing with -- 3 THE COURT: I thought you were going to try 4 to get other witnesses for me. 5 MR. ZONEN: We are not able to do that. The 6 witnesses we had I think were the ones that we 7 identified yesterday. 8 THE COURT: But I was told you would attempt 9 to get other witnesses to fill the day. Because I 10 didn’t give you permission for a short day today, or 11 no day. 12 MR. ZONEN: I apologize to the Court. We 13 are not able to do that. 14 THE COURT: Go ahead and call your client, 15 please. 16 MS. SAGER: I’ll do that. Thank you, Your 17 Honor. 18 MR. ZONEN: We have a witness who’s ready to 19 proceed at this time. 20 THE COURT: All right. You can bring in the 21 jury. 22 23 (The following proceedings were held in 24 open court in the presence and hearing of the 25 jury:) 26 27 THE COURT: Good morning again. 28 THE JURY: (In unison) Good morning. 8183 1 THE COURT: It’s getting to be a habit, 2 isn’t it? 3 Counsel, call your next witness. 4 MR. ZONEN: We’ll call Detective Craig 5 Bonner to the stand. 6 THE COURT: I believe you were already sworn. 7 You may be seated. 8 9 CRAIG BONNER 10 Having been previously sworn, resumed the 11 stand and testified further as follows: 12 13 DIRECT EXAMINATION 14 BY MR. ZONEN: 15 Q. Detective, good morning. 16 A. Good morning. 17 Q. You’ve already testified previously, I 18 believe, on a couple of occasions already. 19 Detective, you’ve already testified 20 previously on a couple occasions. There’s an 21 exhibit that’s in front of you. Could you take that 22 exhibit, please? And is that Exhibit 827? 23 A. Yes, it is. 24 Q. And does that correspond to the Sheriff’s 25 No. 817? 26 A. Yes, it does. 27 Q. Do you recognize that exhibit? 28 A. Yes, I do. 8184 1 Q. What is that exhibit? 2 A. It is an audio cassette tape which contains 3 a recording of Janet Arvizo and Frank Tyson, or 4 Cascio. 5 Q. This is a telephone conversation; is that 6 correct? 7 A. It appears to be, yes. 8 Q. Was that tape-recording delivered to a lab 9 in Los Angeles County? 10 A. Yes, it was. 11 Q. And what lab was that? 12 A. The Aerospace Corporation and/or the 13 National Law Enforcement and Corrections Technology 14 Center. 15 Q. The purpose for delivering that tape to that 16 lab was what? 17 A. To have them analyze it, and to determine if 18 there were any breaks or stops that occurred within 19 that recording. 20 Q. Who was it who delivered that tape to the 21 lab? 22 A. I did. 23 MR. ZONEN: Thank you. No further 24 questions. 25 26 CROSS-EXAMINATION 27 BY MR. SANGER: 28 Q. Good morning. 8185 1 A. Good morning. 2 Q. The National Law Enforcement Technology 3 and -- whatever it was -- 4 A. Corrections and Technology. 5 Q. Corrections and Technology. This is 6 actually a private company, is that right? 7 A. It is. 8 Q. And they market their services to law 9 enforcement; is that correct? 10 A. I believe they have a grant through the 11 government that they get paid to assist law 12 enforcement. 13 Q. Okay. It’s a private company, but they 14 market their services to law enforcement? 15 MR. ZONEN: Objection; asked and answered. 16 MR. SANGER: Asked, but not answered. 17 THE COURT: Overruled. 18 MR. SANGER: Thank you. 19 THE WITNESS: I don’t believe they market 20 their services, no. 21 Q. BY MR. SANGER: They let you know that they 22 exist and they’re available to do work; is that 23 correct? 24 A. That’s correct, yes. 25 Q. They get paid by doing the work? 26 A. Not by us, no. 27 Q. They get paid by this grant? 28 A. I believe so, correct. 8186 1 Q. That’s your understanding? All right. 2 Now, did you seize this particular item that 3 you took down? 4 A. No, I did not. 5 Q. So you took it out of the evidence locker? 6 A. Correct. 7 Q. At the sheriff’s department? 8 A. Correct. 9 Q. And you delivered it down to the -- to the 10 lab; is that right? 11 A. Yes. 12 Q. And then you stayed for a while while some 13 work was done; is that correct? 14 A. That is correct. 15 Q. Not all the work was done while you were 16 there? 17 A. No. 18 Q. You left it? 19 A. Left the item? 20 Q. Yes. 21 A. No. 22 Q. What did you do? 23 A. I remained with this item until they had 24 brought it into their system, and then I retained 25 this item and brought it back to the sheriff’s 26 department. 27 Q. All right. So they made a copy to do the 28 rest of their work? 8187 1 A. They brought it in digitally. I’m not real 2 savvy on it, but basically they played it into their 3 system, which brought it into a computer, and then 4 they utilized that material that was saved onto the 5 computer. 6 Q. Okay. In other words, that is an audiotape. 7 That’s a regular cassette, little reel-to-reel 8 cassette? 9 A. Correct. 10 Q. Magnetic tape, correct? 11 A. Correct. 12 Q. And while you were there, they did some 13 analysis of the actual tape? 14 A. Correct. 15 Q. And then while you were there, they copied 16 it into digital format of some sort? 17 A. Correct. 18 Q. And then you took the actual tape and you 19 brought it back? 20 A. Yes. 21 Q. All right. Now, what is your understanding 22 as to the source of the original tape? 23 A. This tape came from the office of Brad 24 Miller. 25 Q. Okay. In other words, as one of the 26 detectives working on the case, you are familiar 27 with the source of various items of evidence; is 28 that right? 8188 1 A. Yes. 2 Q. And that was something that was seized 3 during the search warrant execution at Brad Miller’s 4 office, correct? 5 A. That is correct. 6 Q. In other words, it was not offered to law 7 enforcement as a piece of evidence that was helpful 8 to Mr. Miller or helpful to Mr. Jackson, or helpful 9 to anybody; is that correct? 10 MR. ZONEN: I’m going to object as beyond 11 the scope of the direct examination and beyond the 12 scope of his personal knowledge. And relevance. 13 THE COURT: Sustained. 14 Q. BY MR. SANGER: Okay. It was something that 15 was -- that was simply seized during a surprise 16 search, right? 17 MR. ZONEN: Objection. Irrelevant; beyond 18 the scope of his knowledge. 19 MR. SANGER: Well, that’s the question. 20 THE COURT: Sustained. Argumentative. 21 MR. SANGER: All right. It’s still my last 22 question. No further questions. 23 MR. ZONEN: No further questions. 24 I will call Dr. Harry Koons to the stand. 25 THE COURT: You may step down. 26 Remain standing, raise your right hand, and 27 face the clerk here. 28 // 8189 1 HARRY KOONS 2 Having been sworn, testified as follows: 3 4 THE WITNESS: I do. 5 THE CLERK: Please be seated. State and 6 spell your name for the record. 7 THE WITNESS: My name is Harry Koons, 8 K-o-o-n-s. 9 THE CLERK: Thank you. 10 MR. ZONEN: May I proceed? 11 THE COURT: Yes. 12 13 DIRECT EXAMINATION 14 BY MR. ZONEN: 15 Q. Dr. Koons, good morning. 16 A. Good morning. 17 Q. What is your current occupation? 18 A. I’m a scientist. 19 Q. You’re a scientist in what capacity? 20 A. I’m a scientist at The Aerospace Corporation 21 in El Segundo, California. It’s the Space Science 22 Applications Laboratory. And our company is a -- 23 well, it hosts an FFRDC, which is a federally funded 24 research and development center, which primarily 25 assists the Air Force and national security agencies 26 in their space programs. 27 Q. All right. Do you also have a second 28 company titled “The National Law Enforcement and 8190 1 Corrections Technology Center”? 2 A. Yes. That’s also hosted by The Aerospace 3 Corporation and it’s funded by the National 4 Institute of Justice. 5 Q. Let’s start with the first one, The 6 Aerospace Corporation. What is your position there 7 with The Aerospace Corporation? 8 A. I’m a distinguished scientist. 9 Q. What kind of work do you do with the 10 Aerospace Corporation? 11 A. On the Air Force side, I have flown 12 instruments on spacecraft to make measurements in 13 the magnetosphere of what we call plasma waves, and 14 I’m also an expert on the space hazards to 15 spacecraft. 16 Q. All right. I think the other microphone is 17 on as well. 18 A. Shall I just talk in the middle? 19 Q. You need to be close to one or the other, 20 but whichever is more comfortable. 21 A. Either one is okay. 22 Q. All right. What is your education, your 23 qualifications, please? 24 A. I have a bachelor’s of science in physics 25 from the Massachusetts Institute of Technology, and 26 a Ph.D. in geophysics also from the Massachusetts 27 Institute of Technology. 28 Q. How long have you worked with The Aerospace 8191 1 Corporation? 2 A. I joined them right out of graduate school 3 in 1968. 4 Q. Give us a sense of what type of work you do 5 for Aerospace Corporation. How do you spend your 6 day? 7 A. I have a million hats. I spend most of my 8 time either -- working on scientific papers. I 9 spend 20 percent of my time on the forensics audio. 10 I spend about 40 percent of my time working with the 11 program offices on trying to help them with their 12 problems on their space programs. There’s almost no 13 way I spend a given day. 14 Q. Now let’s turn to the National Law 15 Enforcement and Corrections Technology Center. Tell 16 us what that is and how that happens to be 17 associated with The Aerospace Corporation. 18 A. It began in 1995. There was a -- an 19 initiative by the National Institute of Justice to 20 find a way of helping local law enforcement agencies 21 in their work. They recognized that a lot of 22 agencies didn’t have a lot of funding for detailed 23 forensics work, and so they issued a proposal for 24 organizations with more capabilities to help them. 25 And so Aerospace responded with a proposal, and out 26 of that was formed the National Law Enforcement and 27 Corrections Technology Center at Aerospace. 28 Q. And what kind of work do you do with the 8192 1 National Law Enforcement and Corrections Technology 2 Center? 3 A. I personally am responsible for the audio 4 forensics work. 5 Q. Is there other forms -- are there other 6 forms of forensic work that are done by that center 7 as well? 8 A. Yes. Video forensics and also crime scene 9 analysis. We have a large capability in our support 10 for the Air Force, electron microscopes and very 11 sensitive equipment that can be used to analyze 12 materials. And so it’s essentially a matrix 13 organization that if the Law Enforcement Center 14 needs something in the laboratories, they go to the 15 person in the laboratories. The video and the audio 16 efforts have been more or less continuous since its 17 inception. 18 Q. All right. What is it that you do with 19 regard to audiotapes? 20 A. Primarily what we do is we enhance the audio 21 to allow for a transcription. Most people would 22 call this clarifying the audio. 23 We also, from time to time, are asked to 24 look at the tapes for special reasons. Some of 25 them, for example, are to identify the number of 26 gunshot wounds -- or not “wounds.” Gunshots that 27 were fired at a scene that was recorded. At other 28 times to try to identify the number of people that 8193 1 were present during the recording. We’ve been asked 2 to try to determine where a recording was made based 3 upon background sounds that were heard on the tape. 4 Q. All right. Are you able to make 5 determinations as to whether a tape is a 6 first-generation or second-generation tape? Is that 7 something that can be done? 8 A. We can -- we can do that, in some cases, by 9 looking at the content of the -- of the tape, yes. 10 Q. Are you able to determine whether there are 11 breaks in a tape? 12 A. Yes. Normally we can determine if there are 13 breaks in the audio in the tape. 14 Q. Are you able to determine, on occasion, 15 whether a tape is a compilation of prior other 16 multiple tapes? 17 A. Normally we can do that, yes. 18 Q. How do you do those things? 19 A. Each one is done in a different way. Let’s 20 start at the back and work forward. 21 If you have a compilation of a multiple of 22 tapes, you’ll have different background audio on the 23 different segments. And, for instance, if one 24 segment, at the extreme, if it was made in a 25 restaurant, and another section was made out on a 26 street with passing cars, and another section was 27 made in a home with a television on, that you can 28 look at the backgrounds of each of these tapes and 8194 1 identify the background in the ways that you see, 2 and you can see where these different sections are 3 on the tape. 4 You ask -- what was the second one? 5 Q. The second one was breaks in a tape. 6 A. Breaks. Okay. For breaks in a tape, you 7 again look at the background, and when you have a -- 8 a discontinuity, or a break in the tape, you’ll 9 normally have -- the tape will start and stop, start 10 up again, stop, start up again, and you can see 11 signatures of this on the waveforms on the tape. 12 You will also find lines in the background. 13 By “line,” I mean a constant frequency. For 14 instance, one line which appears on many tapes is a 15 power line at 60 hertz, and if that power line is 16 discontinuous you could say that the tape was 17 started and stopped when the power line disappears 18 and reappears. 19 Q. I think the first question that was asked to 20 you was multiple generations of tapes. 21 A. Yeah, multiple generation is more difficult. 22 Normally, with the capabilities we have, when a tape 23 is started and played, and stopped and started 24 again, that -- there’s an erase head on the 25 tape-recorder, and the erase head erases the 26 material that was on the tape prior to that. 27 Now, some laboratories have the capability 28 of going in and examining the material of the tape 8195 1 itself, and they may be able to identify if the tape 2 was started and stopped. We can only look at the 3 content of the tape. And normally what we would do 4 when we’re asked a question like that is we would 5 look at the beginning of the tape and we would look 6 at the end of the tape and see if there’s material 7 which is not contiguous with the material in the 8 middle of the tape, and also look at the end of the 9 tape to see whether, if the present material that 10 was recorded, let’s say, is recorded on only one 11 half of the tape. And then if the tape was 12 previously used there would still be material on the 13 second half of the tape, unless somebody recorded -- 14 erased it all the way to the end. 15 Q. Doctor, when did you begin doing forensic 16 analysis of audiotapes? 17 A. 1995. 18 Q. How many do you think you have done since 19 that time? 20 A. About 200 cases, give or take 10 or 20. 21 Q. Have you ever had occasion to testify in 22 court as to your analysis of those tapes? 23 A. No, I haven’t. I’ve been subpoenaed twice 24 before and I have not testified in court. 25 Q. This is your first occasion? 26 A. Yes. 27 Q. I hope you’re comfortable this morning. 28 A. I’m fine. 8196 1 Q. Doctor, did you have an occasion to analyze 2 a tape that was presented to you by Detective Craig 3 Bonner from the Santa Barbara County Sheriff’s 4 Office? 5 A. Yes, sir. 6 Q. Could you tell us approximately when that 7 was? 8 A. They brought the tape to us on June 1st of 9 last year. And according to our logbook, which I 10 may want to refer to later -- but according to our 11 logbook, they stayed with us while we digitized the 12 tape. Digitizing means taking a copy of the audio 13 from the tape and putting it onto a computer. That 14 was done by a technician and I was standing there 15 while he did that. And then we gave the tape back 16 to Craig Bonner. We went up to my office and we 17 looked at it for a period of time. I don’t remember 18 how long it was. There was another gentleman with 19 him, I believe, and then they left. And about a 20 month later, I went through and did a detailed 21 analysis of the tape and wrote a letter, which I 22 sent to him at the time. 23 Q. All right. The work that you do is off the 24 digital copy of that tape, then; is that correct? 25 A. That’s correct. 26 Q. And the process of making a digital copy of 27 a tape, does that in any way transform the original 28 tape? 8197 1 A. No. 2 Q. It wouldn’t affect the integrity of the 3 content of that tape? 4 A. No. There would be no effect on the tape at 5 all. 6 Q. What was your assignment in this case as to 7 the digital copy of that tape? What was your 8 assignment? 9 A. Our assignment was to determine if there 10 were any breaks in the audio. 11 Q. Just for purposes of clarity to make sure 12 that we’re on the same topic, did you have an 13 opportunity to actually listen to the tape as well? 14 A. Yes, partly. We were listening to the tape, 15 but partly we were looking at pictures of the image 16 of the audio on the screen. I have listened to 17 about 90 percent of the tape. 18 Q. Is this a tape of what appears to be a 19 telephone conversation between two people, 20 predominantly two people? 21 A. Okay. Two people. 22 Q. An adult woman and an adult man and a child? 23 A. And a child, yes. Three people. 24 Q. Predominantly the adult woman and the adult 25 child -- the adult man? 26 A. That’s right. 27 Q. All right. Doctor, what did you do with 28 this tape? The copy, that is. What were you 8198 1 seeking to do and what did you do? 2 A. Well, the primary thing we were asked to do 3 was to determine if there were any breaks in the 4 audio. And the first thing that I did was I -- I 5 put an image of the audio on the screen and just 6 looked at the entire tape at one time. And my 7 impression was that it was relatively continuous. 8 And -- because the background appeared to be about 9 the same level from the beginning of the tape to the 10 end. There’s 22 minutes of audio on the tape. It’s 11 a 30-minute tape. 12 And then I went in and I started at the 13 beginning and I looked at the segments which were 14 one minute long. And the first thing I noticed was 15 that, I think it was 13 seconds or so into the tape, 16 there appeared to be a discontinuity. And so I blew 17 that up and I took a look at it, and there was, in 18 fact, a gap at that time period. 19 And so having seen one, then I sort of had 20 some idea what I should look for if there were 21 others like that one. And so I moved along through 22 the tape, and I identified a number of these -- 23 these gaps. The gaps are very short on the tape. 24 They’re about two seconds each. 25 Q. All right. Tell us what you were able to 26 determine with regards to gaps in the tape. 27 A. We found 34 gaps. And they had a 28 characteristic signature. And the signature was 8199 1 very close to the same as when the tape was first 2 started. And by this I mean that if you start an 3 audiotape, there are wheels that take up reel on the 4 feed reel that have to turn, and it takes a little 5 while to get those to turn, “a little while” being a 6 second or so. And during that time period when the 7 amplifier is trying to put a voltage onto that tape, 8 it makes a little signature that looks a little bit 9 like this, and it’s a couple tenths of a second 10 long. 11 And if you look at the beginning of the 12 tape, you get that signature very clearly the first 13 time it’s turned on. There was no audio in front of 14 it and you see that signature. 15 And what I found, then, was a very similar 16 circumstance, not identical each time. But each 17 time there was a gap, there was a signature that 18 looked just like that one at the beginning. 19 Q. What would cause a gap in a tape? 20 A. Can I refer to my notes on this? 21 Q. Yes. Please, go ahead. 22 A. At the time I was analyzing it, I made a 23 note of what I thought might be causing these. And 24 instead of trying to remember it, I’d like to see if 25 I can find it in here and -- 26 Q. Go ahead and take a look and read it, but 27 don’t read it out loud. 28 A. Yeah. Okay. It was July 2nd, and I made a 8200 1 note -- 2 MR. SANGER: I’m going to object. There’s 3 no question pending. 4 THE COURT: Sustained. 5 Q. BY MR. ZONEN: What I’d like you to do is go 6 ahead and read the notes that you have made quietly 7 to yourself. 8 A. To myself. 9 MR. SANGER: And then after he does that, 10 I would like to see what notes he’s referring to. 11 MR. ZONEN: I have no objection. 12 THE WITNESS: Okay. 13 MR. SANGER: May I approach, Your Honor? 14 Hang on, one second. 15 Your Honor, could we approach for a moment, 16 please? 17 THE COURT: Yes. 18 (Discussion held off the record at sidebar.) 19 THE COURT: I’m going to take a brief recess 20 to give counsel an opportunity to look at the notes 21 before further examination, so I’ll see you in a few 22 minutes. 23 (Recess taken.) 24 --o0o-- 25 26 27 28 8201 1 REPORTER’S CERTIFICATE 2 3 4 THE PEOPLE OF THE STATE ) 5 OF CALIFORNIA, ) 6 Plaintiff, ) 7 -vs- ) No. 1133603 8 MICHAEL JOE JACKSON, ) 9 Defendant. ) 10 11 12 I, MICHELE MATTSON McNEIL, RPR, CRR, 13 CSR #3304, Official Court Reporter, do hereby 14 certify: 15 That the foregoing pages 8161 through 8201 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 April 29, 2005, and thereafter 20 reduced to typewriting by computer-aided 21 transcription under my direction. 22 DATED: Santa Maria, California, 23 April 29, 2005. 24 25 26 27 MICHELE MATTSON McNEIL, RPR, CRR, CSR #3304 28 8202 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 IN AND FOR THE COUNTY OF SANTA BARBARA 3 SANTA MARIA BRANCH; COOK STREET DIVISION 4 DEPARTMENT SM-2 HON. RODNEY S. MELVILLE, JUDGE 5 6 7 THE PEOPLE OF THE STATE OF ) 8 CALIFORNIA, ) 9 Plaintiff, ) 10 -vs- ) No. 1133603 11 MICHAEL JOE JACKSON, ) 12 Defendant. ) 13 14 15 16 17 REPORTER’S TRANSCRIPT OF PROCEEDINGS 18 19 FRIDAY, APRIL 29, 2005 20 21 8:30 A.M. 22 23 (PAGES 8203 THROUGH 8304) 24 25 26 27 REPORTED MICHELE MATTSON McNEIL, RPR, CRR, CSR #3304 28 BY: Official Court Reporter 8203 1 APPEARANCES OF COUNSEL: 2 3 For Plaintiff: THOMAS W. SNEDDON, JR., 4 District Attorney BY: RONALD J. ZONEN, 5 Sr. Deputy District Attorney -and- 6 GORDON AUCHINCLOSS, Sr. Deputy District Attorney 7 1112 Santa Barbara Street Santa Barbara, California 93101 8 9 10 For Defendant: COLLINS, MESEREAU, REDDOCK & YU 11 BY: THOMAS A. MESEREAU, JR., ESQ. -and- 12 SUSAN C. YU, ESQ. 1875 Century Park East, Suite 700 13 Los Angeles, California 90067 14 -and- 15 SANGER & SWYSEN BY: ROBERT M. SANGER, ESQ. 16 233 East Carrillo Street, Suite C Santa Barbara, California 93101 17 18 19 For Witness DAVIS WRIGHT TREMAINE LLP 20 Ian Drew: BY: KELLI L. SAGER, ESQ. 865 South Figueroa Street 21 Suite 2400 Los Angeles, California 90017-2566 22 23 24 25 26 27 28 8204 1 I N D E X 2 3 Note: Mr. Sneddon is listed as “SN” on index. 4 Mr. Zonen is listed as “Z” on index. Mr. Auchincloss is listed as “A” on index. 5 Mr. Mesereau is listed as “M” on index. Ms. Yu is listed as “Y” on index. 6 Mr. Sanger is listed as “SA” on index. 7 8 9 PLAINTIFF’S WITNESSES DIRECT CROSS REDIRECT RECROSS 10 11 KOONS, Harry 8224-SA 8230-Z 8231-SA 12 SMITH, Rosibel 8234-Z 8239-SA 13 DREW, Ian 8247-Z 8262-M (Nonjury) 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8205 1 E X H I B I T S 2 FOR IN PLAINTIFF’S NO. DESCRIPTION I.D. EVID. 3 4 841 Book entitled “Boys Will Be Boys” 8163 8232 5 842 Book entitled “The Boy; 6 A Photographic Essay” 8163 8232 7 856 Photograph of file cabinet 8164 8166 8 857 Photograph of computer image of audiotape 8215 8218 9 858 Photograph of computer image 10 of audiotape 8215 8218 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8206 1 THE COURT: All right, Counsel. 2 MR. ZONEN: Thank you, Your Honor. 3 Q. Dr. Koons, we left off, I was asking some 4 questions about breaks in this -- 5 BAILIFF CORTEZ: Your microphone. 6 Q. BY MR. ZONEN: Dr. Koons, when we left off, 7 I was asking you some questions about the breaks in 8 this tape, and I think you proffered the opinion 9 that there were 34 breaks; is that correct? 10 A. That’s correct. 11 Q. All right. And then I had asked you what 12 types of things or occurrences could cause breaks of 13 such a nature, and you had referred to some notes 14 and you’ve read some notes. 15 A. Yes. 16 Q. All right. Are you prepared at this time to 17 answer that question? 18 A. Yes, I am. 19 I hope I can remember all four of them. 20 I identified four things that could cause breaks 21 such as this. So one is the “pause” button on the 22 tape-recorder. If you press the “pause” button and 23 you press it again to restart it, you would get a 24 break in the tape. 25 Another would be a press-to-talk telephone 26 that, I don’t know if -- you may not be familiar 27 with these in the home context very often, but in a 28 classified context, you have a telephone with a 8207 1 button on the handle, and the only time you can hear 2 a person speak is when the button is pressed. 3 Another is the “mute” button on the 4 telephone would cause the audio to go out, and then, 5 when you unmute it, to come back in again. 6 And I don’t remember the fourth one. 7 Q. All right. Would it help to look at your 8 notes again to see what it was? 9 A. Yeah, probably. 10 Oh, a voice-activated line; that if you have 11 a voice activation on your recorder, the recorder 12 will stop and start. It will start whenever it 13 hears a loud -- a signal such as a person beginning 14 to talk, and it will stop when a person stops 15 talking. 16 Q. Would that tend to explain breaks in a 17 first-generation tape? 18 A. Yes, it would. 19 Q. Would it explain breaks in a 20 second-generation tape? 21 A. No. It really can’t do that, because a 22 second-generation tape is not made with a 23 microphone. It’s made by copying or using wires 24 from one tape-recorder to -- the source to the 25 destination tape-recorder. 26 Q. Let’s talk about the first generation, then, 27 if we could. Is it your understanding or does it 28 appear that this is a tape-recording of a telephone 8208 1 conversation? 2 A. Yes, I believe it is. 3 Q. How do people generally tape-record 4 telephone conversations? 5 MR. SANGER: Objection. Calls for 6 speculation; no foundation. 7 MR. ZONEN: I’m not asking this specific 8 time, but simply how is it done that telephone 9 conversations are taped. 10 THE COURT: The foundation is sustained. 11 Q. BY MR. ZONEN: Do you know how people 12 tape-record telephone conversations? 13 A. Yes, there are two basic ways to do it. 14 MR. SANGER: I’m going to move to strike as 15 nonresponsive beyond “Yes.” 16 THE COURT: Stricken. 17 Q. BY MR. ZONEN: You said, “Yes.” 18 A. Yes. 19 Q. During the course of the work that you have 20 done over the last ten years, have you, in fact, 21 tape-recorded telephone conversations? 22 A. Yes. 23 Q. And have you examined conversations that 24 have been tape-recorded? 25 A. Yes. 26 Q. And does your study require that you look 27 into the manner in which the conversations are 28 tape-recorded as well? 8209 1 A. Yes. 2 Q. And would that be important to your 3 analysis? 4 A. Yes. 5 Q. Okay. What are the ways in which telephone 6 conversations are tape-recorded? 7 A. There are two ways. One, you place a small 8 microphone on the handset. And that’s usually not a 9 very good way, because it’s not strongly coupled 10 into the conversation on the phone. 11 The second is to put a sensor in-line with 12 the handset. You have these modular plugs that plug 13 into a modern handset, and you have a device that 14 you plug in-line there, and so it picks up the 15 conversation going in both directions very well. 16 Q. Now, can you tell by listening to a 17 tape-recorded conversation what method was used to 18 tape-record that conversation? 19 A. Yes. 20 Q. Do you have a sense of what method was used 21 in this case? 22 A. I believe it was the in-line sensor. 23 Q. Why is that? 24 A. Because of the quality. It had a good 25 pickup at both ends of the conversation. 26 Q. Now, when we talk about first-generation or 27 second-generation tape, what are we talking about? 28 A. A first-generation tape is called a virgin 8210 1 tape, where the first audio is recorded onto the 2 tape. A second-generation tape is one of two 3 things. It’s either an overrecording of that one, 4 or it’s taking the material on the first tape and 5 recording it onto a second tape. 6 Q. All right. Now, can you tell whether this 7 recording is a first- or second-generation tape or 8 subsequent to that? 9 A. There’s -- there’s some evidence that it’s a 10 second-generation tape. 11 Q. And what is the evidence that you saw? 12 A. The evidence is the first piece of 13 recording, the first 13 seconds or so of recording, 14 is very different than all of the other, which 15 suggested that the -- that the tape had been used 16 for something else and the second recording started 17 later in the tape. 18 Q. Can you tell whether or not this is a tape 19 that is a compilation of multiple conversations? 20 A. I personally cannot determine that. 21 Q. It could be or could not be? 22 A. It could be or could not be. 23 Q. All right. Now, is it possible that this 24 could be a tape-recording of a single conversation 25 but where pieces have been taken out, portions of 26 the conversation deleted? 27 A. If it’s a second-generation tape, yes. If 28 it’s a first-generation tape, probably not. 8211 1 Q. Okay. Let’s -- go ahead and explain that to 2 us. Let’s see, what’s the first probability, or the 3 first possibility? The first-generation tape. 4 A. Okay. If it’s -- 5 Q. Tell us what you mean when you say “probably 6 not” in terms of first generation. 7 A. Okay. If it’s a -- 8 MR. SANGER: I’m going to object to this 9 line of questioning as no foundation. 10 THE COURT: Overruled. 11 You may answer. 12 Q. BY MR. ZONEN: Go ahead. 13 A. If it’s a first-generation tape, you can 14 usually identify it by the length of the -- of the 15 pauses. For example, if you press the “pause” and 16 then you go some distance, it usually takes longer 17 than on a second-generation tape. And also, you can 18 tell by the context of the material that’s recorded 19 on the tape where the breaks occur in it. 20 Q. All right. In this particular case, you 21 suggested a greater likelihood of second generation? 22 A. Yes. 23 Q. All right. And then we were asking some 24 questions -- I was asking some questions about 25 pauses on a second-generation tape and whether or 26 not this could be simply copied from another tape. 27 Explain how you would have those types of breaks 28 then, please. 8212 1 A. The -- the way that you -- you make a 2 high-quality second-generation tape with material 3 from other tapes, if that’s what you mean -- 4 Q. Yes. 5 A. -- is you would pick the section that you 6 want to record, you would turn on the two tapes and 7 record a section, and then you would pause the one 8 you’re recording onto. 9 And then you would go to either another tape 10 or another place on the first tape, and you would 11 set it up so that you’re about to record it again, 12 and you begin it a little ahead of time, and you hit 13 the “pause” button to start it recording again, and 14 you can record a second recording onto the tape. 15 You can take any number of tapes, then, and 16 put them onto one tape that way. 17 Q. What you effectively can do, then, is take 18 portions of an original tape and put it on a second 19 tape, and leave out whatever portions you wish to 20 leave out? 21 A. That’s correct. 22 Q. Do you have any way of knowing whether the 23 tape you analyzed was, in fact, the product of that 24 kind of conduct? 25 A. Not really. 26 Q. I -- 27 A. No. 28 Q. All right. You have no way -- let me reask 8213 1 that question. 2 A. From the analysis that we do, you cannot 3 determine that. 4 Q. Okay. 5 A. You would have to use the context to 6 determine that. 7 Q. All right. In other words, reading the 8 content of it? 9 A. Yes. Now, can I elaborate? 10 Q. Yes, please. 11 MR. SANGER: I’m going to object. There’s 12 no question pending and there’s no foundation based 13 on what was just said. 14 THE COURT: Foundation is -- no question 15 pending is sustained. 16 Q. BY MR. ZONEN: All right. Explain to me 17 exactly what the limitations are in terms of what 18 you’re able to do. 19 A. We are able to -- to look at the audio in 20 several formats on the computer screen. And 21 normally what we look for for breaks are 22 discontinuities in the background or discontinuities 23 in the amplitude. 24 In this case, we found -- we found both, but 25 the -- the type is such that it could be generated 26 by either a “pause” button on a -- going to a 27 second-generation tape or possibly a “pause” button 28 on a first-generation tape. 8214 1 Q. All right. 2 A. It’s only the context of the conversation 3 would tell you which it is. 4 Q. You can’t tell whether, again, this is first 5 generation or second generation, other than the 6 clues that you have already testified to? 7 A. That’s correct. 8 Q. All right. Doctor, I’d like you to look at 9 Exhibits No. 857 and 858 that are before you. Tell 10 us what those two documents are. 11 A. May I start with the second one? 12 Q. 858? 13 A. Yeah. 14 Q. Yes. Please go ahead. 15 A. 858 is a record of the amplitude of the 16 signal from the tape for 1.8 seconds beginning at 17 two minutes and about 37 seconds into the tape. And 18 in the center of the picture, it shows a section 19 where, first of all, the level goes almost to zero, 20 and then it’s at a very low level. Then there’s a 21 transient at the turn-on and then it’s followed by 22 speech. So there’s speech at the beginning, speech 23 at the end, and the transient in the middle is what 24 I have been calling a break. 25 Q. And the other exhibit, 857, what is that? 26 A. 857 is the same time period with a different 27 depiction. This shows what we call an audiogram, or 28 a spectrogram, and it shows the intensity as a 8215 1 function of frequency and then with time running 2 along the horizontal or X axis, and it shows in the 3 background the same break as a lightening of the 4 signal. So this is two different ways of looking at 5 a break at exactly the same time period on the tape. 6 Q. How did you generate those two exhibits? 7 A. We use a software tool called Adobe 8 Audition, and that is actually listed up on the -- 9 on the menu line on the screen. And this is a 10 screen capture where we take the image from the 11 screen and we capture it and we save it as a file on 12 the disk. So this is what we were looking at at the 13 time. 14 Q. So this is actually the equivalent of a 15 photograph, or a copy of -- 16 A. A photograph of the screen. An image of the 17 screen. 18 Q. Yes. Of exactly the image that you look 19 at -- 20 A. That’s correct. 21 Q. -- when you make your determinations -- 22 A. That’s correct. 23 Q. -- and analysis? 24 A. Yes. 25 Q. And this is for a relatively small period of 26 time, is it? 27 A. 1.8 seconds it says on here. 28 Q. And in 1.8 seconds, does it generate 8216 1 sufficient information that you can actually see and 2 identify a break at that time point? 3 A. Yes, the -- yes. 4 Q. You talked to us about the signature. You 5 used that term early on in your testimony. What 6 does that refer to? 7 A. The signature is shown on both of these. 8 It’s shown best on 858, and that’s the -- there is 9 a -- a wave in the line at 238, just before 238.1 10 seconds, which is what happens when you turn this 11 particular tape-recorder on. 12 Q. All right. Are these breaks relatively 13 short in duration? 14 A. They’re very short. This one is only about 15 a second long. 16 Q. The other 33 breaks in this telephone 17 conversation, are they comparable to that one as 18 well? 19 A. Yes. 20 Q. What does that suggest to you, that all of 21 the breaks are roughly comparable and fairly short 22 in duration? 23 A. That they were -- I think in this case, in 24 addition to the signature, they were all made in the 25 same way. 26 Q. All right. Would it be difficult to have 27 relatively short breaks if you are stopping and 28 starting a tape-recording during the course of a 8217 1 conversation? 2 A. Well, the breaks would still be short. It’s 3 the context that’s different. 4 Q. Oh, I see. The content of the conversation 5 itself. Okay. 6 The two exhibits that we’ve been referring 7 to, 857 and 858, do they accurately depict the 8 content contained in those exhibits? In other 9 words, are they an accurate depiction of what you 10 looked at during the course of your examination? 11 A. Yes, they are. 12 MR. ZONEN: Your Honor, I would move to 13 introduce 857 and 858 into evidence. 14 MR. SANGER: No objection. 15 THE COURT: They’re admitted. 16 MR. ZONEN: And may we publish those two at 17 this time? 18 THE COURT: Yes. 19 Q. BY MR. ZONEN: In front of you should be a 20 laser that I left -- you have it. Good. 21 Go ahead, please, and tell us what it is 22 that you’re looking at. 23 A. Yes, we’re looking at an image of -- do I 24 have to talk close to this? 25 MR. SANGER: We haven’t identified which 26 exhibit is up there, for the record. 27 MR. ZONEN: 858. That’s Exhibit 858 that’s 28 currently being shown. 8218 1 Q. And yes, I’m sorry, I know that’s an 2 awkward position, but you do have to continue to 3 speak through the microphone. 4 A. They won’t be able to see through me. 5 This is an image of the screen when we were 6 analyzing the tape, and the time runs along the 7 bottom axis here. It’s virtually impossible for you 8 to read it, but it starts at two minutes 36.994 9 seconds. That means two minutes and essentially 10 37 seconds into the tape. It’s very difficult to 11 read this little number down here, but that says 12 that the view is 1.8 seconds long. So the time from 13 here to there is 1.8 seconds. 14 The signature is the amplitude of the 15 signal, and it’s centered at the center, about zero. 16 And the best analogy that I can make with 17 this is, if there are people here that are old 18 enough to remember what a vinyl record is, this is 19 very much like the groove in that vinyl record; that 20 the needle would be moving along here, and so it 21 would move faster here, and hardly move at all here, 22 and then it goes through a big bump, and then more 23 here. And by -- on a vinyl record, it reproduces the 24 audio in the same way that the voltage that we’re 25 displaying here, when it’s passed through a speaker 26 on a computer, reproduces the speech. 27 Q. Do you see the signature that you refer to? 28 A. Yes. The signature extends from here to 8219 1 here, right in -- right in the center, and this is 2 the primary signature which I’ve been calling the 3 turn-on signature. 4 Q. And the break that you refer to? 5 A. Yes, the break is really this entire time 6 period, that during this time period the audio 7 turned off, right here. It’s very low here. And 8 then this is the turn-on signature when the reel 9 started to come back up to speed. And then there’s 10 normal speech after about this time here. So this 11 is all a transient that occurred during what I call 12 the break in the tape. 13 Q. All right. Let’s go ahead to 858, if we 14 can. 15 A. Okay. This is exactly the same -- 16 MR. SANGER: Excuse me, Your Honor. 17 MR. ZONEN: We need a question. 18 MR. SANGER: I think this is 857. Am I 19 wrong? 20 THE WITNESS: Yes, this is -- 21 MR. ZONEN: Forgive me. My dyslexia is 22 acting in. 23 This is 857. The last one, then, was 858, 24 if we could correct the record accordingly. 25 Q. Please go ahead and tell us about 857. 26 A. Yes, this is the same time period, starting 27 at 236.994 and extending for 1.8 seconds across the 28 axis here. And what’s displayed on the vertical 8220 1 axis now is frequency. 2 And the best way to explain this is if you 3 look at this signature over here, this is a word 4 that a person has spoken, and what you can see is 5 the fundamental of their voice box and then the 6 harmonics of their -- of their voice. And you can 7 also see that over here and over here. 8 And this is the time period which was very 9 quiet where I said that the tape had turned off. 10 And you can see that the noise at the bottom, which 11 is indicated by the yellow, has gone away. The blue 12 indicates the lowest volume at that frequency; the 13 green, an intermediate volume; the yellow, a louder 14 volume; and the red, the loudest volume. 15 And the frequency scale is on the left over 16 here. It’s impossible to read it there. This is 17 500 hertz -- oop, no, I think you want to.... 18 Okay. Yes, okay. So this is a thousand 19 hertz, and it goes well above what most people’s 20 hearing is at, at ten kilohertz up here. Take it 21 back to the full.... 22 So if you can remember what I showed on the 23 preceding exhibit, this is the period when it went 24 very quiet. This is a period where there was just a 25 little bit of low frequency noise here. This is the 26 transient, and this is the beginning where it begins 27 to have speech again over here. So this is the 28 characteristic signature, on this particular media, 8221 1 of a break. 2 Q. Doctor, you had mentioned something about a 3 voice-activated tape-recorder. What is a 4 voice-activated tape-recorder? 5 A. A voice-activated tape-recorder is a 6 tape-recorder which, if the room goes silent, turns 7 off. And if somebody speaks in the room or there’s 8 a noise in the room, the tape-recorder turns back on 9 again. 10 Q. Does there generally have to be a period of 11 silence before the tape-recorder is activated or 12 deactivated? 13 A. Yes, it usually takes quite a bit of time 14 before it deactivates, because it doesn’t want to 15 miss speech. And so they have a circuit that waits 16 a long time, in terms of seconds, for the silence to 17 decide to turn off, but then they usually turn on 18 very rapidly because they want to get the first 19 words. 20 Q. Okay. Doctor, do you have an opinion as to 21 whether this tape is the product of a 22 voice-activated tape-recorder and then those breaks 23 would have been caused by silence in the 24 conversation? 25 A. My opinion is it’s not voice-activated. 26 Q. And why is that? 27 A. Because the turn-off occurred too rapidly 28 after the speech right here. This is only a few 8222 1 tenths of a second. 2 MR. ZONEN: All right. We can turn the 3 lights on and turn off the projector at this time. 4 Q. Doctor, just a couple of final questions. 5 Do you have an opinion as to the nature of 6 the equipment that was used in this particular case? 7 MR. SANGER: I’m going to object as either 8 asked and answered or it’s vague. 9 THE COURT: Overruled. 10 Q. BY MR. ZONEN: Go ahead, please. 11 And I guess by “equipment,” I mean both 12 telephones and tape recorders. 13 MR. SANGER: Then it’s compound. 14 THE COURT: Just a minute. 15 THE WITNESS: I really have -- 16 THE COURT: I’ll sustain the objection. 17 Q. BY MR. ZONEN: Let’s talk about telephones. 18 Does it make a difference to you in terms of 19 your analysis of what type of phones are used? 20 A. Only in the sense of whether it was 21 voice-activated or not. 22 Q. Okay. 23 A. But otherwise, no. 24 Q. Or the recording equipment? 25 A. No. 26 Q. Okay. Do you have a sense of where the 27 recordings took place? 28 A. No. 8223 1 Q. All right. Is there any information that 2 would be -- let me rephrase that just for one 3 second. 4 In terms of resolving the question of 5 whether or not this is multiple conversations as 6 opposed to a single long conversation, are you able 7 to hear any unique dynamics in the sounds that would 8 send to suggest that there were recordings at 9 different locations? 10 A. No. 11 Q. Are you able to tell one way or the other? 12 A. No. 13 MR. ZONEN: Okay. I have no further 14 questions. 15 THE COURT: Cross-examine? 16 17 CROSS-EXAMINATION 18 BY MR. SANGER: 19 Q. All right. Dr. Koons, the bottom line to 20 this is that you had a tape which you analyzed, and 21 you believe that the tape -- the recording process 22 was stopped several times during the course of the 23 recording; is that right? 24 A. Yes, sir. 25 Q. All right. You don’t know if it was stopped 26 for five minutes, or ten minutes, or for a second; 27 is that correct? 28 A. That’s correct. 8224 1 Q. And you didn’t really listen to the tape to 2 hear the context when you did your initial analysis 3 of this tape; is that correct? 4 A. Yes. 5 Q. Recently you decided to listen to the tape 6 to see if you could kind of hear what the people 7 were saying, right? 8 A. Right. 9 Q. And when you listened to the context, as far 10 as you could tell, it seems to be pretty much a 11 continuous conversation, correct? 12 A. Most, but not all of it. 13 Q. The first 13 seconds you had a question 14 about; is that right? 15 A. Yes. 16 Q. All right. And, now, when you looked at the 17 sonographic, if I’m using the right term, analysis, 18 that was pretty much consistent with what you heard 19 when you listened to it like the rest of it; is that 20 right? 21 A. Yes. 22 Q. In other words, you pretty much have the 23 same background noise. You’ve got the same level of 24 speech that goes throughout the entire tape; is that 25 correct? With the exception of the first 13 26 seconds. 27 A. That’s correct. 28 Q. And you had speculated in your bench 8225 1 notes -- in fact, you said, “Speculate on causes,” 2 right? 3 A. Right. 4 Q. And you said, “Pause on tape-recorder; 5 voice-activated line; push-to-talk phone; mute 6 button,” right? 7 A. Right. 8 Q. Now, what is an AGC? 9 A. An AGC is an automatic gain control circuit, 10 and the point of an AGC is to try to make the audio 11 level uniform on a tape. 12 If you have, for instance, a conference with 13 people sitting around a large table, and you have a 14 tape-recorder in the middle, that the person closest 15 to it will be naturally louder than the person at 16 the end of the table, and the automatic gain 17 control, when it hears a period when the audio is 18 weak, tries to push it up and amplify it, and if 19 it’s strong, it brings it down a little bit so it’s 20 uniform on the tape. 21 Q. And you determined that you did not think 22 this was an automatic gain control function that was 23 causing these apparent breaks; is that correct? 24 A. That’s correct. There is no automatic gain 25 control on this recorder. 26 Q. So as it stands, you really don’t know what 27 happened, but there was some kind of break? 28 A. Yes, there are breaks. 8226 1 Q. All right. You also indicated that there’s 2 a signature to these breaks, simply meaning that 3 they appear to have been caused by the same 4 mechanism; is that right? 5 A. That’s right. 6 Q. And from what you could tell by looking at 7 it, it appeared to be some kind of a mechanical 8 function that caused this break; is that right? 9 A. That’s right. 10 Q. All right. In other words, somebody pushed 11 a button, either hit a “stop” button on the 12 recorder, or a “mute” button, or a “pause” button, 13 something like that? 14 A. Can I elaborate on that? 15 Q. Yes. 16 A. More specifically, by “mechanical,” I meant 17 that it had something to do with probably the 18 rotation of the wheels on the -- the drive on the 19 tape-recorder rather than the button itself. That 20 the wheel will take a little longer or a little 21 shorter to take up slack, for example, at the 22 beginning and end of the tape and the middle of the 23 tape. And so there are many different mechanical 24 things like that, rather than the button itself. 25 Q. Okay. Well -- all right. That’s fair 26 enough. In other words, the way these cassette 27 tapes work is that there’s a magnetic head -- 28 A. Uh-huh. 8227 1 Q. -- that will alter the tape itself 2 magnetically -- 3 A. Yes. 4 Q. -- when input occurs; is that correct? 5 A. Yes. 6 Q. So somebody talks; it’s translated into 7 energy that affects the magnetic head, that in turn 8 affects the tape; is that right? 9 A. That’s correct. 10 Q. So as the tape turns by the head, that’s how 11 you record it, right? 12 A. Right. 13 Q. And if you stop the tape from turning, it 14 stops recording? 15 A. Yes. 16 Q. All right. And so your determination is 17 that at some point it looks like this tape was 18 stopped from time to time? 19 A. Right. 20 Q. Now, you said you couldn’t tell if it was 21 first generation or second generation; is that 22 correct? 23 A. That’s true. 24 Q. And you did not do an analysis of the actual 25 tape? 26 A. Physically. 27 Q. Physical analysis of the tape. All right. 28 And there are labs that can do that? 8228 1 A. I believe so, yes. 2 Q. All right. So you just looked -- once you 3 digitized it, you just looked at the actual 4 electronic remnants of whatever it was that was done 5 to this tape? In other words -- 6 A. I don’t want to use the word “remnants,” 7 but, yes. 8 Q. I was trying to think of a better word. 9 A. I know what you mean. 10 Q. The electronic imprints or whatever it was. 11 A. It’s the signature of the electronic signal 12 on the tape. 13 Q. If you actually look at a tape, sometimes 14 you can determine that there are erasure marks or 15 there’s other actual physical -- 16 A. Right. 17 Q. -- marks on the tape; is that right? 18 A. We did not do that. 19 Q. Did not do that. 20 And I take it, from your analysis, you have 21 no way of determining who it was that stopped this 22 tape from turning from time to time? 23 A. No. 24 Q. And you have no idea how long the tape 25 stopped; is that correct? 26 A. That’s correct. 27 Q. It’s even possible that there could be a 28 malfunction in the tape machine, is it not? 8229 1 A. Possibly. But they were not random. 2 Q. All right. So you don’t know how long the 3 tape stopped; in other words, if somebody stopped 4 the tape, got up, went out of the room, came back, 5 or something? 6 A. That’s true. Yes. 7 Q. It could have been just a second that was 8 not recording, couldn’t it? 9 A. Yes. 10 MR. SANGER: All right. Okay. Thank you. 11 I have no further questions. 12 13 REDIRECT EXAMINATION 14 BY MR. ZONEN: 15 Q. Doctor, explain to us what you mean by “not 16 random.” 17 A. If you have -- if you have a random process, 18 the -- the distribution of the stops will obey a 19 statistical function called a Poisson function, and 20 these do not fit that function. They’re almost 21 uniformly spaced throughout the tape, except at the 22 end, where they become more rapidly in the last 23 minute. 24 Q. All right. Do you have an opinion as to 25 whether the breaks in this particular tape are 26 caused by a malfunction of the recording device? 27 A. My opinion is they are not. 28 MR. ZONEN: Thank you. No further 8230 1 questions. 2 3 RECROSS-EXAMINATION 4 BY MR. SANGER: 5 Q. Actually, I didn’t notice that. So let me 6 ask you about that. 7 You actually -- in your bench notes there, 8 you broke down the times. Are you saying there’s 9 essentially a uniform time gap between the tape -- 10 between the -- 11 A. Between the gaps. 12 Q. Between the gaps? 13 A. Not uniform. It’s not periodic. But 14 they -- there is a group at the end which is out of 15 character with the other ones, which suggest that 16 it’s not random. There were a bunch that occurred 17 in the 21st minute and most of the other minutes had 18 only one or two. 19 Q. I see what you’re saying. 20 A. There was also one period around six to ten 21 minutes where there was no gap at all. So it’s not 22 random. 23 Q. Okay. When you say it’s not random, do you 24 mean it’s -- 25 A. “Random” means a throw of the dice did it. 26 Q. Okay. So because there are groupings, you 27 feel that there’s some causation? 28 A. That’s right. 8231 1 Q. So if there was a mechanical problem of some 2 sort, it would have to be a mechanical problem that 3 was more prevalent at one point? 4 A. Than the others, right. 5 MR. SANGER: All right. Okay. Thank you. 6 No further questions. 7 MR. ZONEN: No further questions. 8 THE COURT: Thank you. You may step down. 9 MR. ZONEN: Your Honor, the next two 10 witnesses require a Court ruling. 11 THE COURT: The Court will admit Exhibits 841 12 and 842 and make a finding that the probative value 13 exceeds the prejudicial effect under 352. 14 MR. ZONEN: I’m sorry, I didn’t hear the 15 last part of your ruling. 16 THE COURT: It was just a finding under 352. 17 MR. ZONEN: And the finding was it’s 18 admissible? 19 THE COURT: They are admissible. They are 20 admitted. 21 MR. ZONEN: Thank you. 22 We’ll call Detective Rose White to the 23 stand, please. 24 MR. SANGER: Is there a limiting instruction 25 that goes along with that, Your Honor? 26 MR. ZONEN: Smith. I’m sorry, Smith. 27 THE COURT: We could do one. 28 MR. SANGER: Your Honor, would it be 8232 1 possible to approach briefly to discuss that? 2 THE COURT: Yes. 3 (Discussion held off the record at sidebar.) 4 THE COURT: I think the next two witnesses 5 are going to involve these exhibits, are they, or 6 the next one? 7 MR. ZONEN: The next one witness. 8 THE COURT: (To the jury) The next witness 9 is going to involve testimony about two books, 10 Exhibits 841 and 842. And I want to advise you that 11 these exhibits fall within the same instruction I 12 gave you regarding the 1108 evidence, Code Section 13 1108 evidence relating to the alleged prior sexual 14 acts. 15 Remember those instructions I gave you 16 sometime ago? This material is connected to that 17 and has the same limitation. At the end of the 18 trial, we’ll reiterate that instruction for you so 19 that it’s -- this won’t be the last time you hear 20 the instruction. 21 MR. ZONEN: We’ll call Rose Smith to the 22 stand, Detective Smith, please. 23 THE COURT: You’ve already been sworn. You 24 may be seated. 25 DETECTIVE SMITH: Thank you, Your Honor. 26 27 ROSIBEL SMITH 28 Having been previously sworn, resumed the 8233 1 stand and testified further as follows: 2 3 THE COURT: You’re still under oath. 4 THE WITNESS: Yes, Your Honor. 5 6 DIRECT EXAMINATION 7 BY MR. ZONEN: 8 Q. The jury hasn’t heard who you are yet. 9 You’ve already been sworn in, but tell us who you 10 are, please. 11 A. Yes. I’m Detective Rosibel Smith. 12 R-o-s-i-b-e-l. S-m-i-t-h. 13 I’m a police detective with the City of Los 14 Angeles, Los Angeles Police Department, currently 15 assigned to the Threat Management Unit of the 16 Detective Support Division. 17 Q. How long have you been an officer with the 18 Los Angeles Police Department? 19 A. For a little over 20 years. 20 Q. And your current assignment is what again, 21 please? 22 A. The Threat Management Unit of the Detective 23 Support Division, and we are responsible for 24 investigating stalking cases, criminal threats and 25 workplace violence. 26 Q. How long have you been in that unit? 27 A. For six years. 28 Q. And prior to that, what work did you do? 8234 1 A. Prior to that, I worked a station called 2 Rampart Detectives, and then prior to that Juvenile 3 Division. 4 Q. Have you worked as a sex crimes 5 investigator? 6 A. Yes, I have. 7 Q. For what period of time? 8 A. For nine years. 9 Q. And which nine-year period? 10 A. From 1988 to 1997. 11 Q. As part of your responsibilities as a sex 12 crimes investigator, did you conduct and execute 13 search warrants? 14 A. Yes, I did. 15 Q. In August of 1993, did you execute a search 16 warrant at Neverland Ranch in Santa Barbara County? 17 A. Yes, I did. 18 Q. Did you do that with others? 19 A. Yes. 20 Q. A few others, I would assume? 21 A. There were several others, detectives and 22 officers at the location, yes. 23 Q. And do you remember which -- where on the 24 property at Neverland Ranch that you personally 25 conducted a search? 26 A. In the master bedroom of Mr. Michael 27 Jackson’s residence. 28 Q. All right. Now, the -- I’d like you to look 8235 1 at three exhibits that are in front of you at this 2 time, Exhibit No. 841 and 842 already in evidence. 3 A. Okay. 4 Q. Tell us what those two exhibits are. Let’s 5 start with the first one, 841. 6 A. 841 is a hard-cover book entitled, “Boys 7 Will Be Boys.” 8 Q. And what is that a book of? 9 A. It’s a book depicting images of young boys. 10 Some are clothed. Some are nude. And various 11 stages of dress. Depicts them in various positions, 12 at play, swimming, jumping. So.... 13 Q. Is there an inscription in the front of that 14 book? 15 A. Yes, there is. 16 Q. Is that an inscription in a person’s 17 handwriting or printing? 18 A. Yes. 19 Q. Did you seize that book? 20 A. Yes, I did. 21 Q. From where did you seize that book? 22 A. From a file cabinet in the master bedroom of 23 Mr. Jackson’s residence. 24 Q. Now, Mr. Jackson’s residence is a -- the 25 bedroom portion of his residence is actually a 26 suite; is that correct? 27 A. Yes. 28 Q. Is there an upstairs and a downstairs? 8236 1 A. Yes, there is. 2 Q. And the portion from where you seized these 3 items, was that from the upstairs or the downstairs? 4 A. It was from the downstairs portion of the 5 bedroom. 6 Q. And can you -- can you tell us where 7 specifically it was seized from? 8 A. It was seized from a file cabinet within a 9 closet in the master bedroom. 10 Q. Let’s go ahead to the next exhibit, 842, and 11 tell us what that is, please. 12 A. This is another book, hard-cover book, 13 entitled, “The Boy; A Photographic Essay.” 14 Q. Can you tell us what this is, please? 15 A. And again, this is a book depicting images 16 of young boys, again in various stages of clothing 17 and undress. Some appear to be be nude. And again, 18 various poses; playing, swimming, jumping. 19 Q. Is there an inscription in the front of that 20 book as well? 21 A. Yes. 22 Q. Now, Detective, those two items, were they 23 seized from the same location? 24 A. Yes, they were. 25 Q. And I think you’ve already described that 26 location; is that correct? 27 A. Yes. 28 Q. I’d like you to look at another exhibit 8237 1 that’s before you, which is 856 in evidence. 2 A. Okay. 3 Q. What is 856? 4 A. 856 is a photograph of the search warrant. 5 We, as law enforcement, are required to photograph 6 the location that we serve the warrant on. And this 7 is the photograph of the file cabinet where the 8 books were seized from. 9 Q. All right. And in that file cabinet, are 10 there multiple drawers? 11 A. Yes, there are. 12 Q. Do you actually know from which drawer those 13 books were seized? 14 A. Yes, I do. 15 Q. Which drawer was that? 16 A. They were seized from the third drawer. 17 MR. ZONEN: Your Honor, may I publish that 18 exhibit? It’s already in evidence. 19 THE COURT: Yes. 20 Q. BY MR. ZONEN: Describe for us, please, the 21 photograph that we’re looking at. 22 A. To the rear of the photograph is the file 23 cabinet containing the four drawers. The third 24 drawer is where I seized the books from. So it’s 25 partly covered by, looks like maybe a briefcase of 26 some sort, or something there. 27 Q. All right. Detective, how were you able to 28 get into the closet? How were you able to get into 8238 1 the file cabinet? 2 A. The closet was -- actually, the room was 3 locked. And we had to get keys for the room, as 4 well as for the file cabinet, to get access into the 5 room and the file cabinet itself. 6 Q. Were you able to do that? 7 A. Yes, we were. 8 MR. ZONEN: Thank you. I have no further 9 questions. 10 You can turn the lights on. 11 MR. SANGER: Leave it. Leave it. 12 MR. ZONEN: Do you need this? 13 MR. SANGER: Yeah. 14 15 CROSS-EXAMINATION 16 BY MR. SANGER: 17 Q. Detective Smith, how are you? 18 A. Fine, thank you, sir. How are you? 19 Q. You mentioned, Detective, that you were -- 20 that you’re currently assigned to a unit with the 21 Los Angeles Police Department that investigates a 22 number of things, and I think you said threats? 23 A. Yes. 24 Q. Okay. And one of the things you mentioned 25 is stalking; is that correct? 26 A. That’s correct. 27 Q. And do you, in the course of your duties, 28 investigate celebrity stalkings? 8239 1 A. Yes. 2 Q. All right. And many times celebrities, in 3 your experience, you find are stalked by fans; is 4 that right? 5 A. Yes. 6 Q. And is this -- does this pose a danger to 7 the celebrities? 8 A. It could, yes. 9 Q. So you take those seriously? 10 A. Absolutely. 11 Q. In fact, somebody may claim to be a fan, and 12 they come out -- 13 MR. ZONEN: I’m going to object as exceeding 14 the scope of the direct examination. 15 THE COURT: Sustained. 16 MR. SANGER: All right. Very well. 17 Q. Your assignment back in 1993 was working 18 with the detectives division in sex crimes; is that 19 correct? 20 A. Yes. 21 Q. That’s Los Angeles Police Department? 22 A. Yes. 23 Q. So you got a warrant -- I say “you.” Your 24 department got a warrant to search Mr. Jackson’s 25 home in Santa Ynez, in Los Olivos, California; is 26 that correct? 27 A. That’s correct. 28 Q. That’s not within the City of Los Angeles, I 8240 1 take it? 2 A. No, it is not. 3 Q. And you got a warrant issued by a Los 4 Angeles judge? 5 A. Yes. 6 Q. All right. And the people that came with 7 you at that time, among others, were fellow Los 8 Angeles police officers; is that correct? 9 A. Yes. 10 Q. And you ended up seizing these books that 11 you talked about in the course of that search in 12 1993; is that right? 13 A. That is correct. 14 Q. Now, these two books -- I think -- are they 15 still up there in front of you? 16 A. Yes, they are. 17 Q. Those two books are not unlawful to possess 18 by adults in California; is that correct? 19 A. That is correct. 20 Q. And do you have any idea how Mr. Jackson 21 came into possession of those books or how they 22 ended up in this locked file cabinet? 23 A. From the inscription in Exhibit No. 842, it 24 appears that possibly a fan, somebody named Rhonda, 25 possibly gave the book to him. And the other one, 26 I do not know. 27 MR. SANGER: All right. Your Honor, may I 28 approach and retrieve the books? 8241 1 THE COURT: Yes. 2 MR. SANGER: Thank you. 3 Your Honor, I’d like to put the book up on 4 the screen, if I may. 5 THE COURT: Yes. 6 Q. BY MR. SANGER: I’ll put the cover up there, 7 first of all. And it says, “The Boy; A Photographic 8 Essay,” and this is -- this is Exhibit 842, correct? 9 A. Yes. 10 Q. All right. You referred to the inscription, 11 and I’m going to put the inscription up on the 12 board. I’m not going to put the whole one up 13 because it doesn’t fit yet. 14 But in any event, this is on the -- I know 15 there’s a word for it, but it’s on the first actual 16 page of the book, whatever you call it, right inside 17 the cover; is that right? 18 A. That’s right. 19 Q. Okay. And you were -- based on this 20 inscription, it appeared to be a book that was 21 presented to Mr. Jackson, or to his people, by a 22 fan; is that correct? 23 A. It appears to be, yes. 24 Q. And then down at the bottom, it looks like 25 it says, “1983,” and that could be “Chicago,” but I 26 don’t know. Or is it something else? What do you 27 think? 28 A. I -- it’s really hard to read. It could 8242 1 possibly be “Chicago,” but I’m not certain. 2 Q. But in any event, 1983 is the date? 3 A. Yes. 4 Q. At the time that you did this -- that you 5 did this search in 1993, did you determine that Mr. 6 Jackson not only received, but kept a tremendous 7 amount of material from fans that was sent to him? 8 I’m not just talking about books, but just things in 9 general that Mr. Jackson received. 10 Did he seem to have a lot of things that had 11 been sent to him by fans, if you can remember? 12 A. I do recall him -- or locating letters, 13 notes, from fans. 14 Q. All right. So even back then, in ‘93, you 15 were -- or I shouldn’t say “even.” He had a lot of 16 fans sending him things. That was your 17 understanding as you were doing this search; is that 18 correct? 19 A. Yes. 20 MR. SANGER: All right. Now, with the 21 Court’s permission, I’d like to put up 841. That’s 22 the other book. 23 THE COURT: Yes. 24 MR. SANGER: If I may. 25 Q. And this is the cover. We can’t get the 26 whole thing on at once, but it’s 841 up in the 27 corner, for the record, and it says, “Boys Will Be 28 Boys,” and it has a picture there; right? 8243 1 A. Yes. 2 Q. That’s the cover. And by the way, this is a 3 commercially -- both of these are commercially 4 available books; is that correct? 5 A. Yes. 6 Q. Okay. And when you open this book up, it 7 actually says -- let’s look right over here. I’m 8 going to try to talk loudly while I’m holding this. 9 It says on the flyleaf, “Book Adventures, 10 Inc.,” and the copyright 1966. Do you see that? 11 A. Yes. Down at the bottom. 12 Q. All right. And then if we look up here, at 13 the top, again the first page -- I’m sure somebody 14 who knows books knows the correct word for that. 15 But the very first page, up at the top it says, 16 “OP” -- “OP ‘88.” That means “Out of print, ‘88,” 17 does it not? Or do you know? 18 A. I’m not certain what that means. 19 Q. And somebody has written up there, “Very 20 scarce.” 21 A. Yes. 22 Q. Do you see that? That was there on the book 23 when you seized it; is that right? 24 A. Yes, it was. 25 Q. And there’s some initials that look like 26 “MJ” up in the upper right-hand corner? 27 A. Yes. 28 Q. Now, could you read the inscription for the 8244 1 record, please? And I’ll move it up as you go 2 along. 3 A. “Look at the true spirit of happiness and 4 joy in the boys’ faces. This is the spirit of 5 boyhood, a life I’ve never had and will always dream 6 of. This is the life I want for my children. MJ.” 7 MR. SANGER: Thank you. I have no further 8 questions. 9 MR. ZONEN: I have no further questions. 10 THE COURT: Thank you. You may step down. 11 THE WITNESS: Thank you. 12 MR. ZONEN: Your Honor, the next witness 13 requires a pre-trial hearing. 14 THE COURT: (To the jury) All right. I’m 15 going to excuse you again. We have to have another 16 hearing before this witness may be presented. 17 Is the witness here now? 18 THE BAILIFF: The Judge is addressing you. 19 MR. ZONEN: I’m sorry, Your Honor. I’m not 20 hearing well today. 21 THE COURT: Is the witness here now? 22 MR. ZONEN: Yes, the witness is here. 23 24 (The following proceedings were held in 25 open court outside the presence and hearing of the 26 jury:) 27 28 MR. ZONEN: May his counsel sit at the 8245 1 counsel table? 2 THE COURT: Yes, for this hearing. 3 Please remain standing and raise your right 4 hand. Face the clerk over here. 5 6 IAN DREW 7 Having been sworn, testified as follows: 8 9 THE WITNESS: I do. 10 THE CLERK: Please be seated. State and 11 spell your name for the record. 12 THE WITNESS: Ian, I-a-n. Last name is Drew, 13 D-r-e-w. 14 THE CLERK: Thank you. 15 THE COURT: Counsel? 16 MR. ZONEN: May I proceed? 17 THE COURT: No, just a moment. I’m sorry, I 18 want to interrupt you. 19 I’m not sure that I made that finding on the 20 record or at sidebar on Exhibits 841 or 842, both of 21 them, but I previously had reviewed the books and 22 made a finding, preliminary finding, that there were 23 photographs within each book that could be 24 determined to be sexually explicit photographs by a 25 trier of fact, and then I made a finding on -- under 26 352, which I know is on the record. 27 Now you may proceed with this witness. 28 MR. ZONEN: Thank you, Your Honor. 8246 1 DIRECT EXAMINATION 2 BY MR. ZONEN: 3 Q. Mr. Drew, good morning. 4 A. Good morning. 5 Q. Sir, what is your current occupation? 6 A. Editor at US Weekly Magazine. 7 Q. What does that mean? What do you do? 8 A. Everything from reporting on stories, to 9 coordinating stories, to a wide array of covering 10 the celebrity news. 11 Q. How long have you worked in that capacity? 12 A. Um, about two and a half years. 13 Q. And how long with US Magazine specifically? 14 A. Oh, no. At US Magazine, two and a half 15 years, excuse me. And in the capacity about three 16 and a half years. 17 Q. What is your -- are you a journalist? 18 A. Yes. 19 Q. What is your training and experience as a 20 journalist? 21 A. I have about three and a half years 22 experience. And I started working at a small 23 newspaper and then moved up to different 24 publications, and have been at US Weekly the 25 longest. 26 Q. If I can direct your attention back to 27 February of the year 2003. Were you working with or 28 for Michael Jackson at that time? 8247 1 A. No. 2 Q. Were you working for anybody who was working 3 with or for Michael Jackson? 4 A. No. 5 Q. All right. Did you have any association 6 with either Marc Schaffel or Ronald Konitzer or 7 Dieter Weizner? 8 MS. SAGER: I’m going to object, Your Honor, 9 to the extent that’s calling for unpublished 10 information. I think the question is vague. 11 THE COURT: They can’t hear you. Is your 12 microphone on? 13 MS. SAGER: Sorry, Your Honor. 14 I’m objecting to the question as calling for 15 unpublished information and as vague. 16 THE COURT: Sustained on both grounds. 17 Q. BY MR. ZONEN: Were you called upon to 18 conduct an interview of a family, including a mother 19 of children by the name of Janet Arvizo? 20 A. No. 21 Q. Were you expecting to do an interview with 22 Janet Arvizo? 23 A. Yes. 24 Q. Did that interview ever take place? 25 A. No. 26 Q. Who was it that was coordinating that 27 interview with you? 28 A. Ronald Konitzer and Marc Schaffel. 8248 1 Q. Did you know either Ronald Konitzer or Marc 2 Schaffel prior to that day? 3 A. Yes. 4 Q. What is it that you were supposed to be 5 doing with regards to this interview? 6 A. Interviewing them for a print magazine. 7 Q. Do you know what the subject matter was 8 going to be of that interview? 9 A. How Mr. Jackson did not do anything 10 inappropriate with the family. 11 Q. Who is it who retained you to do that? 12 A. Marc Schaffel and Ronald Konitzer. 13 Q. Were you expecting to get paid for that 14 interview? 15 A. I did not get paid through them. I got paid 16 through a magazine. 17 Q. All right. 18 A. I was on staff at a magazine at the time. 19 Q. All right. Was this an article that would 20 appear in a magazine? 21 A. Uh-huh. 22 Q. Would it include photographs? 23 A. That was hoped for. 24 MS. SAGER: Object to the extent it’s 25 unpublished information, Your Honor, since there was 26 not an interview published. 27 THE COURT: Sustained. 28 Q. BY MR. ZONEN: Did you ever meet with Janet 8249 1 Arvizo or her family? 2 MS. SAGER: Same objection, Your Honor. 3 THE COURT: Sustained. 4 Q. BY MR. ZONEN: Did you know who they were? 5 MS. SAGER: Same objection, Your Honor, to 6 the extent that nothing has been published on that 7 subject. 8 THE COURT: Sustained. 9 This is -- all objections are under the 10 shield law at this time? 11 MS. SAGER: Yes, Your Honor. 12 Q. BY MR. ZONEN: Did you have a conversation 13 with Ronald Konitzer as to whether or not that 14 interview would take place? 15 A. Yes. 16 Q. What did Mr. Konitzer tell you? 17 MS. SAGER: And, Your Honor, I’ll only 18 object to the extent that if it includes information 19 that has not been published, that the witness should 20 not be required to reveal anything unpublished. To 21 the extent that there has been published information 22 on that, we are not objecting. 23 MR. ZONEN: And let me preface the question 24 with one other.... 25 Q. Mr. Drew, did you appear on national 26 television and discuss this very topic? 27 A. I believe so. 28 Q. Was the national presentation through Court 8250 1 TV? 2 A. I believe so. 3 Q. Were you interviewed by someone by the name 4 of Diane Dimond? 5 A. I was. 6 Q. Have you ever seen that presentation? 7 A. Yes. 8 Q. And you did recognize yourself as well as 9 Miss Dimond? 10 A. Yes, I did. 11 Q. And did you discuss the subject matter of 12 this very interview on national television? 13 A. I believe so. I believe so. Again, I do so 14 many television interviews as part of my job, so 15 remembering what I said in each one is a little 16 difficult, but I believe so. 17 Q. All right. Did you, in fact, discuss the 18 reason why this interview was not going to take 19 place? 20 A. Yes. 21 Q. And what was the reason that the interview 22 would not take place? 23 MS. SAGER: And again, Your Honor, I will 24 only object to the extent that there’s any 25 information that has not been published. But to the 26 extent Mr. Drew has revealed any portion of that on 27 national television, we’re not objecting. 28 THE COURT: So can I take this as an 8251 1 instruction by yourself to your witness to only 2 divulge material that he’s previously divulged on 3 television? 4 MS. SAGER: Yes, Your Honor. Thank you. 5 THE COURT: I’ll accept that. 6 Q. BY MR. ZONEN: Can you answer the question? 7 A. I was told that the family was unavailable. 8 Q. And what does “unavailable” mean? 9 A. I was told that they had disappeared from 10 the ranch in the middle of the night. 11 Q. And who had told you that? 12 A. Ronald Konitzer. 13 Q. In fact, he used the word “escaped,” didn’t 14 he? 15 MS. SAGER: Same objection, Your Honor. 16 MR. MESEREAU: Objection; leading. 17 THE COURT: Overruled. 18 MS. SAGER: Your Honor, we would object to 19 the extent that the word -- whatever words were used 20 in the interview are the words that were used, and 21 any other words should be unpublished information. 22 MR. ZONEN: The objection was overruled? 23 THE COURT: Well, I’m to take that as an 24 instruction to the witness, because the objection 25 is -- it’s not really an objection. She’s saying, 26 “If something happened, I object. If not, I don’t.” 27 So I can’t -- 28 MS. SAGER: I understand, Your Honor. 8252 1 THE COURT: I could rule if it happened, 2 okay? And if not, no. 3 I think the better way is for you to 4 instruct your witness. And he knows, to the best of 5 his recollection, what he’s said and what he hasn’t 6 said. And then if there’s an issue there, we’ll 7 deal with it. 8 MS. SAGER: Thank you, Your Honor. 9 And I would instruct Mr. Drew not to answer 10 with respect to any words that were not used in his 11 discussion of what Mr. Konitzer said. 12 THE COURT: Do you have any idea what the 13 question was you’re supposed to answer? 14 THE WITNESS: Could you rephrase, please? 15 Thank you. 16 Q. BY MR. ZONEN: What exactly did Ronald 17 Konitzer tell you about the disappearance of the 18 Arvizo family? 19 MS. SAGER: Again, Your Honor, with the same 20 instruction to the witness, only to answer as to 21 what he said on national television on that subject. 22 THE COURT: Can we just -- can you give him 23 that standing instruction that he would tell you or 24 indicate to you, or us, if we’re getting into an 25 area he hasn’t discussed, so you don’t have to keep 26 interjecting yourself? 27 MS. SAGER: That’s fine, Your Honor. 28 I don’t know that Mr. Drew has a copy of the 8253 1 transcript of the interview in front of him. And 2 that’s the only reason I’m issuing this same 3 objection. 4 THE COURT: Go ahead. 5 MR. ZONEN: All right. 6 MR. MESEREAU: Excuse me. 7 Your Honor, am I allowed to participate in 8 this area of objections? I’m not sure. 9 THE COURT: You’re not sure? 10 MR. MESEREAU: Well, I think I can. But I 11 know you’re trying to determine what’s the scope of 12 the privilege. 13 I’m objecting to what he’s saying for other 14 reasons. And I’m going to object on hearsay as far 15 as what he said on an interview. 16 MR. ZONEN: To the extent that they are 17 statements from the unindicted co-conspirator, Mr. 18 Konitzer. 19 THE COURT: Well, I think -- he’s asking me a 20 question. 21 Yes, you can object, because what we’re 22 testing here is what the jury will hear, of course, 23 and then what you can cross-examine on. So if you 24 object to something and it doesn’t come in, there’s 25 not an issue about cross-examination. 26 MR. MESEREAU: Okay. Thank you. 27 I’m objecting on hearsay. 28 MR. ZONEN: The answer is it’s a statement 8254 1 in furtherance of a conspiracy from one of the 2 unindicted co-conspirators, Mr. Konitzer. 3 THE COURT: I don’t know what the question 4 was now. 5 Q. BY MR. ZONEN: What specifically did he say 6 with regard to the disappearance of this family? 7 Would it be helpful if the witness was given 8 a transcript of the television program? We can 9 do that. 10 THE COURT: Well, you have to ask the witness 11 that question. That’s the question that, would it 12 refresh your recollection if -- 13 MR. ZONEN: I don’t believe he’s -- well -- 14 THE WITNESS: It’s a simple enough question, 15 I think. 16 I was told that they had disappeared; that 17 they couldn’t keep them there anymore. 18 MR. MESEREAU: Objection. Objection. 19 THE WITNESS: And -- 20 THE COURT: Just a moment. 21 Let him complete it. 22 THE WITNESS: And I believe the word 23 “escaped” was used, but again, I don’t -- I can’t 24 say word for word. But from -- the best of my 25 recollection, yes, I heard the word “escaped.” 26 THE COURT: Okay. Now, I made you wait, but 27 you have an objection of hearsay. 28 MR. MESEREAU: I’m objecting to double 8255 1 hearsay. What the prosecutor is asking is, “What 2 did you say in an interview about what somebody else 3 said?” 4 MR. ZONEN: No, I did not. 5 THE COURT: He’s asking what Mr. -- 6 MR. ZONEN: Konitzer. 7 THE COURT: -- Konitzer said. That is 8 hearsay. Now, the question is, was it in the 9 furtherance of the conspiracy? 10 I don’t see that it is, so I’ll sustain the 11 objection. 12 MR. ZONEN: I ask to make an offer of proof. 13 THE COURT: Yes, you may. 14 MR. ZONEN: This was -- he was prepared to 15 do the interview of the family, the interview that 16 ultimately was done on the evening of the 19th into 17 the morning hours of the 20th by a different 18 interviewer, and this was going to be done in 19 furtherance of the promotion of the rebuttal film, 20 the portion that was to be contained in the Maury 21 Povich film. The family took off. That was in 22 conjunction with the movement off of Neverland Ranch 23 about that time. 24 It was Mr. Konitzer who was attempting to 25 arrange this, this filming, who then called him and 26 notified him that this filming would not take place 27 because the family had escaped. It’s a reflection 28 of the state of mind of the co-conspirator; that the 8256 1 family acted in conformity with the testimony as we 2 presented it. 3 So the objection -- or the exception to 4 hearsay would be both a statement in furtherance of 5 conspiracy, and a statement consistent with the 6 state of mind of the co-conspirator. 7 THE COURT: I don’t get that. 8 If the information is -- I mean, all of the 9 things you said could be in furtherance of the 10 conspiracy, except we get to this one statement, 11 which is, basically, “Where’s the family?” “Well, 12 they escaped.” 13 That is -- that’s not in furtherance of the 14 conspiracy. If anything, it might reveal the 15 conspiracy. 16 MR. ZONEN: The fact that he says they 17 escaped, they disappeared in the middle of the 18 night, reflects, as to Mr. Konitzer, a state of mind 19 consistent with the fact that this family was being 20 kept there against their will, or at least as to the 21 mother. So that would be an admission on his part 22 that the family, in fact, was being kept against 23 their will. 24 And to the extent that that statement was 25 made during the course of the conspiracy, which it 26 was, it was mid-February, then that statement would 27 be an adoptive admission as to each of the 28 unindicted co-conspirators, including the defendant. 8257 1 THE COURT: All right. You just changed 2 horses in mid-stream. 3 MR. ZONEN: I sure did. 4 THE COURT: Do you want to address the -- 5 MR. MESEREAU: Yes, Your Honor. 6 I mean, first of all, I think the Court has 7 an obligation to take into account the whole context 8 of the statement, when it was made, and the purpose 9 that apparently it was made for, in deciding whether 10 it might even be reasonably construed to be in 11 furtherance of a conspiracy. 12 THE COURT: I think he conceded suddenly that 13 it’s not in furtherance. Now he’s asking that it 14 come in as an admission, some sort of admission. 15 MR. MESEREAU: No, it’s a hearsay statement 16 by someone who’s never been charged with a crime, 17 who isn’t in the courtroom. It’s not an admission. 18 They didn’t even charge any of these people, except 19 Mr. Jackson. 20 THE COURT: Don’t -- wait, wait. Talk to me. 21 MR. MESEREAU: It’s not an admission. 22 That’s just grabbing for something that doesn’t 23 exist. The only way it could possibly get in would 24 be an exception to the hearsay rule, which the Court 25 has, I think, found does not exist. 26 MR. ZONEN: If I could respond very briefly, 27 Your Honor. 28 Konitzer’s state of mind certainly is an 8258 1 issue in this case as one of the unindicted 2 co-conspirators named specifically in the Indictment 3 returned by the grand jury. To that extent it would 4 be relevant. 5 But it is also admissible as either an 6 admission, given the fact that he is an unindicted 7 but named co-conspirator, or a declaration against 8 interest, specifically penal interest, if we were to 9 consider him as an unnamed party to this action. 10 MR. MESEREAU: Your Honor, again, he’s not 11 here. He’s not charged. He’s not present. He’s 12 not testifying. We can’t cross-examine him. It’s 13 not an admission. And it’s clear hearsay. If it 14 can’t come in under alleged co-conspirator hearsay 15 by someone who’s never even been charged with a 16 conspiracy, it just can’t come in. 17 THE COURT: Well -- just a minute. You know 18 that’s not the law. The law is that statements by 19 co-conspirators, whether they’re here or with us 20 today or not, can come in. That’s not the issue. 21 That’s -- he’s -- you’re not addressing the issue. 22 But just give me a moment to think here. 23 MR. MESEREAU: Your Honor, if there was a 24 co -- 25 THE COURT: Just a moment, please. 26 Okay. I think what you were going to say 27 is, if it were a co-defendant and one co-defendant’s 28 admission was attempted to be introduced in a trial 8259 1 of both of them, that it couldn’t be introduced in 2 front of the jury. And I agree with you, if it were 3 any other crime but conspiracy. 4 MR. MESEREAU: But, Your Honor, I don’t 5 believe it would come in as an admission. I believe 6 it would come in under co-conspirator hearsay or it 7 couldn’t come in. 8 THE COURT: They either are trying to help 9 you or they can’t hear. 10 (Laughter.) 11 MR. MESEREAU: Oh. 12 MR. ZONEN: I would object to the first of 13 those choices. 14 MR. MESEREAU: What I said to Your Honor is 15 in that event, it would not still come in as an 16 admission. It would have to come in as an exception 17 to the hearsay rule and be deemed by the Court 18 co-conspirator hearsay. 19 THE COURT: Well -- 20 MR. ZONEN: Can I ask -- 21 THE COURT: I’m going to -- 22 MR. ZONEN: Can I ask this one question? 23 If, in fact, among the overt acts -- if, in 24 fact, among the overt acts would be acts of this 25 family leaving Neverland Ranch, and to the extent 26 that this person is one of the unindicted 27 co-conspirators, and the overt acts include their 28 efforts to return the family to the ranch and to 8260 1 return the family to this video presentation, then 2 his statement that they had fled the ranch and 3 escaped would certainly be statements in furtherance 4 of the conspiracy in terms of their efforts to renew 5 their activities to bring them back onto the ranch. 6 It would also be an admission on the part of 7 a co-conspirator to the extent of what they were 8 trying to do, and it would be a reflection of that 9 party’s state of mind that that’s what they wanted 10 to do, was keep them on the ranch until the point 11 that they were able to do this particular interview, 12 and thereafter to Brazil. 13 MR. MESEREAU: I think I said what I can 14 say, Your Honor. I don’t think it can come in in 15 either event. 16 MR. ZONEN: And I’ll submit as well. 17 MS. SAGER: And, Your Honor, we really don’t 18 have a dog in this fight. I want to make sure the 19 record is clear that -- 20 THE COURT: They can’t hear you, so you have 21 to speak into the microphone. 22 MS. SAGER: We don’t have a dog in this 23 fight, but I just want to make sure the record is 24 clear as to what this witness testified about was 25 not the video interview of the family. He was a 26 magazine reporter who was asking for an interview of 27 the family. 28 And I don’t want it to be confused with some 8261 1 conspiracy theory about what was or wasn’t done with 2 the video and what they were doing with that. That 3 is not what Mr. -- 4 THE COURT: I’m not -- you have to have been 5 here for 49 days or so. 6 (Laughter.) 7 MS. SAGER: I understand, Your Honor. 8 THE COURT: That’s not a problem. 9 MR. ZONEN: Where does that metaphor come 10 from? This is the second Los Angeles lawyer talking 11 about dogs and fights. 12 THE COURT: I don’t know. I’ve used it 13 before. But after hearing someone chastised, I’ve 14 decided I’ll never use it again. 15 I think it’s admissible as to the state of 16 mind of the co-conspirator, so I’m going to allow 17 it. 18 MR. ZONEN: Thank you. I have no further 19 questions. 20 MR. MESEREAU: May I cross-examine, Your 21 Honor? 22 THE COURT: Yes. 23 MR. MESEREAU: Okay. Thank you. 24 25 CROSS-EXAMINATION 26 BY MR. MESEREAU: 27 Q. Good morning, Mr. Drew. 28 A. Good morning. How are you? 8262 1 Q. Fine, thank you. 2 You gave an interview to Lieutenant Klapakis 3 and another Santa Barbara sheriff named Robel on 4 August 4th, 2004, correct? 5 A. Yes. 6 Q. Do you know how long that interview was? 7 A. No. I didn’t think it was that long, but it 8 was probably a lot longer than it was. 9 Q. You waived privileges when you gave that 10 interview, correct? 11 MS. SAGER: This is a question that’s a 12 legal question, not a question for this witness as 13 to whether he waived privileges. He did not have 14 counsel. He had not been advised of rights. 15 THE COURT: Sustained. 16 Q. BY MR. MESEREAU: You gave that interview 17 freely and voluntarily, correct? 18 MS. SAGER: Same objections, Your Honor. He 19 was being served with a subpoena, had no counsel. 20 THE COURT: Just a moment here. 21 All right. As to the objection that he had 22 no counsel present, that’s overruled. 23 The question pending, which you may answer, 24 is, did you give that interview freely and 25 voluntarily? 26 THE WITNESS: I guess. I didn’t know it was 27 an interview, and I didn’t know that it was being 28 documented in any way. 8263 1 Q. BY MR. MESEREAU: You were not served with a 2 subpoena for purposes of that interview, were you? 3 A. I don’t know why I was served with a 4 subpoena. I just got it in the mail. 5 Q. You did not attend that interview because 6 you were subpoenaed to do so, right? 7 MR. ZONEN: Objection. 8 THE COURT: Maybe he doesn’t know which 9 interview you’re talking about. 10 THE WITNESS: I didn’t think I was attending 11 any interview. 12 Q. BY MR. MESEREAU: Did you interview on 13 August 4th, 2004, with Lieutenant Klapakis and 14 Sergeant Robel of the Santa Barbara Sheriff’s 15 Department? 16 A. I had a conversation with them. 17 Q. Where did the conversation take place? 18 A. Outside of my office. 19 Q. And did those two officers meet you outside 20 of your office? 21 A. They did. 22 Q. Did you speak to them? 23 A. I did. 24 Q. You were not subpoenaed to speak to them, 25 were you? 26 A. No. 27 Q. You spoke to them about facts concerning 28 this investigation, true? 8264 1 A. Yes. 2 Q. You told them you were a freelance 3 journalist who was currently working for US Weekly 4 Magazine, right? 5 A. That’s not true. I’ve only worked as a 6 staffer at US Weekly. 7 Q. Did you tell them you were a journalist in 8 that interview? 9 A. Yes. 10 Q. Did you tell them you were doing some work 11 for US Weekly Magazine? 12 A. Yes. 13 Q. After you told them you were a journalist, 14 you continued to interview with them, right? 15 A. Yes. 16 Q. You gave them statements about Marc 17 Schaffel, true? 18 MS. SAGER: Your Honor, to the extent that 19 this is unpublished information that Mr. Drew has 20 gathered in the course of his job as a journalist, 21 I would still assert the shield law, which applies 22 unless he has published information. And the 23 statute and the Constitution specifically say, 24 “disseminated information to the public.” And I’m 25 quoting. 26 So any discussion he may have had with law 27 enforcement officials would not fall within the 28 scope of published information as it’s defined in 8265 1 Article I, Section 2(b). 2 MR. MESEREAU: If I may respond, Your Honor. 3 THE COURT: Yes. 4 MR. MESEREAU: He gave a free, voluntary 5 interview with two sheriffs. He knew they were 6 taking notes. He knew they were going to make a 7 report. He knew it was part of this investigation. 8 He knew that the reports were likely to be 9 circulated. 10 They have been circulated. They are not 11 under any particular special form of privilege. 12 They have been produced to the defense. They are 13 available to use at trial. He knew the information 14 he gave could be used in the investigation. 15 THE WITNESS: That’s not true. I didn’t 16 know any of that. I knew some of that. 17 MS. SAGER: Ian. 18 Actually, I was going to object, Your Honor, 19 but I was going to let Mr. Mesereau finish first. 20 THE WITNESS: Okay. 21 MR. MESEREAU: He gave extensive information 22 about Schaffel, Konitzer, his discussions with them, 23 his perceptions of them. And it’s very clear from 24 the interview he knew exactly what he was doing. 25 MS. SAGER: And, Your Honor, I would point 26 out two things. One is Mr. Mesereau, with due 27 respect, has not established any of the things that 28 he just said as to what Mr. Drew knew or didn’t 8266 1 know. He’s merely asserted them. 2 Second, we’re talking about a waiver of a 3 constitutional right, First Amendment right and 4 state constitutional right. And I don’t think Mr. 5 Mesereau has established either that Mr. Drew 6 understood or had any reason to know when he was in 7 that conversation that there was later going to be a 8 position taken that, by talking to the police 9 officers at all, that he was waiving his 10 constitutional rights. 11 THE COURT: Are there any cases on this 12 scenario where a person talks freely to the law 13 enforcement and then claims the shield law in court? 14 MS. SAGER: I don’t know of a case in 15 California, Your Honor, that deals with this 16 particular issue. 17 The Playboy case, which we cited in our 18 papers, does deal with the difference between 19 revealing information publicly and any other 20 information that may be related that’s not revealed 21 publicly, and they draw a very strict line. The 22 language of Article I, 2(b), talks about information 23 that is disseminated to the public. Everything else 24 is defined as unpublished information. 25 THE COURT: What about -- I didn’t read the 26 Playboy case. What was the disclosure in the 27 Playboy case? 28 MS. SAGER: In the Playboy case, there was 8267 1 an interview published with Cheech and Chong that 2 had some information that they had given during the 3 course of an interview with a Playboy -- 4 THE COURT: But nobody understood what they 5 said. 6 (Laughter.) 7 MS. SAGER: Everybody bought it for the 8 article, too. 9 (Laughter.) 10 MS. SAGER: The argument was made, in 11 subpoenaing all of the information from Playboy, 12 that they had already revealed, in fact, what was 13 said in the interview because they wrote an article 14 about it. 15 And the Court of Appeal in the Second 16 Appellate District said only what is actually 17 revealed in the article disseminated to the public 18 has been revealed, even though there were 19 discussions with Mr. Cheech and Mr. Chong, even 20 though there was some information published. 21 THE COURT: Are you familiar with that case, 22 Counsel. 23 MR. MESEREAU: I am not, Your Honor. But I 24 would -- I haven’t completed my examination of him 25 yet, so I don’t think -- I think it’s rather 26 premature to conclude we can’t establish that he 27 didn’t know what he was doing or didn’t know he 28 was -- 8268 1 THE COURT: The question, though, is what 2 questions he has to answer right now while you’re 3 trying to complete your examination. That’s the 4 problem. And -- 5 MR. MESEREAU: Well, Your Honor, if I can’t 6 cross-examine him on the issues he wants to testify 7 on direct about, then I don’t think he should be 8 allowed to testify as a witness. 9 MS. SAGER: And, Your Honor, I’d only point 10 out that we did not brief the issue of waiver, 11 because it did not come up, but there’s certainly a 12 long line of cases about the waiver of 13 constitutional rights needs to be knowing, not 14 simply a voluntary conversation, but a knowing 15 waiver of your rights. 16 And if Mr. Drew is asked, I expect he could 17 answer the question as to whether he knew and 18 understood that, by any conversation he had with 19 these officers, he was waiving all rights he might 20 have under the California shield law and the 21 Constitution. 22 THE WITNESS: Can I actually say, I was told 23 by the officers and I actually had the understanding 24 that -- 25 THE COURT: Just a moment. 26 THE WITNESS: All right. 27 THE COURT: The way we have to do this is we 28 rely on your attorney to help -- 8269 1 THE WITNESS: Okay. 2 THE COURT: -- what she wants to bring out. 3 You -- that’s the -- you have a very competent 4 attorney, so I think you should -- 5 MS. SAGER: Thank you, Your Honor. 6 THE WITNESS: Thank you. 7 MS. SAGER: And I just would add, Your 8 Honor, that I don’t disagree with Mr. Mesereau about 9 whether Mr. Drew should have to testify at all. I 10 do think getting into cross-examination will lead 11 into areas that are covered by the privilege, which 12 is the reason we put that in our brief. It is a 13 problem when you have reporters called as witnesses, 14 because even if one side tries to limit what they’re 15 asking to published information, it is inevitable 16 the cross-examiner will attempt to get into other 17 areas that are not published and that do delve into 18 reporters’ constitutionally protected information. 19 MR. MESEREAU: If I may, Your Honor. 20 THE COURT: Yes. 21 MR. MESEREAU: There is information in the 22 police reports that suggests that it was the 23 conclusion of the investigating sheriffs that Mr. 24 Drew has been a business associate of Mr. Schaffel. 25 The Court already knows, because it’s in 26 evidence, that he did conduct an interview of Debbie 27 Rowe at Mr. Schaffel’s residence, presumably at the 28 behest of Mr. Schaffel. And there is considerable 8270 1 evidence in the police reports that he has 2 relationships with Konitzer and others. 3 Now, if he’s going to be called to testify 4 to what Mr. Konitzer says to him, it would terribly 5 prejudice our ability to defend if we couldn’t 6 extensively cross-examine on veracity, on bias, on a 7 motive to make a statement for a particular reason, 8 and also his relationship with these people. If we 9 can’t do that, he should be precluded from 10 testifying. 11 MS. SAGER: And the problem again, Your 12 Honor, is journalists have relationships with a 13 number of people. They may be getting information 14 from a lot of different sources. And the fact that 15 they get information from people that they may later 16 want to publish, that’s something that is 17 tremendously protected under the First Amendment. 18 And to allow counsel to cross-examine into 19 what information he may or may not have gotten from 20 people who may have been confidential sources, may 21 have been on-the-record sources but were not ever 22 published, really opens up the privilege widely, and 23 for something that in this case, frankly, is a 24 tangential issue. 25 And there’s some question about whether this 26 particular statement has any relevance here, given 27 that I don’t believe it’s disputed that the family 28 left when they left, why they left. And the 8271 1 circumstances of that, are not within this witness’s 2 personal knowledge. 3 So what his impressions were, what he 4 interpreted the remark to mean is not something that 5 would be admissible. So the remark itself that they 6 left is really not all that important compared to 7 the constitutional issues. 8 THE COURT: Actually, the substance of what 9 he said is important. That’s not a good argument. 10 But -- 11 MR. MESEREAU: If the Court will permit, 12 Your Honor, could we have a few minutes to try to 13 research that case? Because I’m not -- 14 THE COURT: The Playboy case? 15 MR. MESEREAU: Yes. 16 THE COURT: Yeah, it wouldn’t hurt for me to 17 look at it. 18 MR. ZONEN: Do we need the actual evidence 19 from that case? 20 THE COURT: Let’s -- 21 MS. SAGER: As I said, Your Honor, we did 22 not brief the issue of waiver extensively, so we’re 23 happy to do that for the Court if that’s going to be 24 an issue that’s -- 25 THE COURT: That might not be necessary if 26 each of us have a chance to look at the case. 27 Let’s see. The next recess is scheduled 28 for -- I don’t want to make the same mistake I made 8272 1 earlier, so why don’t we just take our 11:30 recess, 2 and then everybody who doesn’t have to read cases 3 can eat. Okay? And we’ll come back at the end of 4 our 11:30 recess. 5 (Recess taken.) 6 THE COURT: All right. You wanted time to 7 look at that case? 8 MR. MESEREAU: I did look at it, Your Honor. 9 It deals primarily with civil matters, obviously. 10 And I think -- 11 THE BAILIFF: Can you turn your microphone 12 on, please? 13 MR. MESEREAU: Pardon me. 14 I did look at the case, Your Honor, and I 15 believe it clearly deals with civil matters. I 16 think what the Court in our discussion has 17 identified are really three issues to be analyzed. 18 The Court did analyze the first issue, and 19 that had to do with the question of whether this was 20 admissible or not. We did do a little bit of 21 research. I don’t know if the Court will allow me 22 to even address that again, or if you would, I would 23 refer the Court to a local case called Saling, which 24 holds that, “Although it has been held that 25 statements which merely narrate past events are not 26 to be deemed to be made in furtherance of a 27 conspiracy...,” and then it does say that the Court 28 has to do a balancing analysis. The cite is 8273 1 7 Cal.3d at 852. 2 So we would certainly renew our objection to 3 the admission of the statement the witness 4 purportedly wants to testify to. 5 Number two, the question is, does the shield 6 law apply? And if the shield law is deemed by the 7 Court to apply, I believe you still have to then do 8 another balancing test to determine, in a criminal 9 trial, if the defendant, to get a fair trial, has a 10 right to crack what is being shielded. 11 And I would refer the Court to the case of 12 Delaney vs. Superior Court, 50 Cal.3d 785. It’s a 13 1990 case. And you have a holding that, “To 14 overcome a prima facie showing by a newsperson that 15 he is entitled to withhold information under the 16 shield law, a criminal defendant must show a 17 reasonable possibility the information will 18 materially assist his defense. A criminal defendant 19 is not required to show that the information goes to 20 the heart of his case.” 21 Now, I think the prosecutor has basically 22 admitted that he thinks the purported testimony goes 23 to the heart of his conspiracy allegation. He 24 believes it goes to the heart of his conspiracy 25 allegation as it appears in the Indictment and as it 26 appears in the alleged overt acts in the Indictment, 27 according to the prosecutor. 28 The question we have, or the question for 8274 1 the Court is, if he’s allowed to bring in this 2 hearsay statement, or I think the Court considered 3 it an admission as well, what are we allowed to do 4 if we want to cross-examine him? 5 And I think it’s pretty clear that the 6 witness and his attorney are attempting to preclude 7 any type of examination into his relationships with 8 the people he wants to testify about, relationships 9 which he identified and articulated to two police 10 officers. And I renew my claim that we would be 11 severely hamstrung and prejudiced in our ability to 12 examine him for the truth of what he is saying and 13 his motives for saying what he’s saying if we 14 couldn’t go into that. 15 So where we are right now, Your Honor, is, I 16 think there’s an argument that it’s shielded based 17 on the case the Court read, but there is a far 18 stronger argument that the defense must go into that 19 information if the witness is allowed to testify. 20 So perhaps the better solution, weighing all 21 of these issues, is disqualify him from testifying, 22 and then there is no argument that the defendant is 23 being unfairly hamstrung in his ability to confront 24 and cross-examine. 25 And I don’t think -- one thing I will say to 26 the Court, in his interview to the police, it 27 appears as if he’s giving all of the information. 28 As I understand, a lot of these cases dealing with 8275 1 the shield law, they have to deal with information 2 gathered by the reporter that the reporter doesn’t 3 want to disclose. 4 Here, you’ve got police interviews where 5 basically the police appear to be saying nothing, 6 giving him no information at all, and he is 7 voluntarily allowing himself to be interviewed, near 8 his place of business, about Schaffel, about 9 Konitzer, et cetera, about the Arvizos. 10 THE COURT: But, see, that’s the material 11 he’s gathered. It’s not -- he wasn’t gathering from 12 the police, or if he tried, he apparently failed. 13 He was -- he had already gathered his information, 14 and he was telling the police what he’d gathered. 15 MR. MESEREAU: Uh-huh. 16 THE COURT: And -- 17 MR. MESEREAU: But it does involve more than 18 that, Your Honor. He admitted to the police working 19 out of Schaffel’s home for weeks, for example. 20 Things like that are part of that interview and are 21 part of the information his lawyer wants to shield. 22 And it would just -- it would just eviscerate our 23 ability to probe and test for credibility on 24 cross-examination if we couldn’t go into those 25 relationships and that information. 26 THE COURT: Well, under Delaney, you have to 27 show -- the defense has the burden of showing that 28 the information, the unpublished information that he 8276 1 has, would materially assist the defense. And -- 2 MR. MESEREAU: As I just said, Your Honor, I 3 believe the holding is just if we show a reasonable 4 possibility it will help us to assist the trier of 5 fact in determining whether this witness should be 6 believed or whether this witness has a motive to lie 7 or a motive to gain financially by appearing in this 8 trial, by saying what he’s saying, given his past 9 associations, his past admissions and statements to 10 various people. If we can’t go into that, we are 11 severely prejudiced. 12 THE COURT: Well, what is the information 13 that you claim that he has that would materially 14 assist the defense? And it says you must make a 15 specific showing that the nondisclosure would create 16 a substantial probability of injury to the 17 defendant’s right to a fair trial. What is that 18 information that you think is that valuable? 19 MR. MESEREAU: His relationships with 20 Konitzer; when he met him; how many times he spoke 21 to him. Did he have any financial connection with 22 Konitzer? To his knowledge, was Konitzer involved 23 with Schaffel when he was involved with Schaffel? 24 What business relationship or financial 25 relationships did he have with these two people? 26 Why was he trying to get information from them? 27 What did he intend to do with the information? When 28 did he last talk to them? Did he, in fact, talk to 8277 1 the police voluntarily and give information to try 2 and be part of this case, because he is a journalist 3 and he can profit that way? 4 I mean, there are lots of questions that I 5 would want to go into about his relationship -- 6 THE COURT: There’s lots of questions, but 7 the -- what is the information you would get that 8 would -- it’s not the questions that prove the 9 point. It’s the answers. 10 MR. MESEREAU: Yes. Yes. Well -- 11 THE COURT: So what are you offering -- what 12 are you proffering to me in the way of information 13 he has? Not questions you have. 14 MR. MESEREAU: He’s had a falling-out with 15 Schaffel, who he had a business relationship with. 16 He worked out of his house for three weeks. He saw 17 a contract at Schaffel’s saying Schaffel was going 18 make millions of dollars. He was not allowed to 19 participate in that. He had a falling-out with 20 Konitzer. Is he now trying to basically assist the 21 prosecution in incriminating Konitzer? 22 He has a lot of relationships with these two 23 characters that I would think we have to be able to 24 go into to show his motive to lie. 25 THE COURT: You’re making an offer of proof 26 that those facts are -- if he were forced to 27 testify, he would say that he had not been able to 28 enter into multi-million dollar deals with them, et 8278 1 cetera, et cetera? 2 MR. MESEREAU: Well, he may deny it. But if 3 he does, I would explore it further and show he’s 4 not telling the truth. 5 THE COURT: Okay. Well, what I want to know 6 is what you know he has to say, not what you suspect 7 from your questions. 8 MR. MESEREAU: Well, Your Honor, I’ve never 9 interviewed him. 10 THE COURT: You have the police interview. 11 MR. MESEREAU: Yes, I do. 12 THE COURT: That would be of some 13 assistance, I would think. 14 MR. MESEREAU: Yes, Your Honor. He worked 15 out of Schaffel’s residence for approximately three 16 weeks. He learned that Schaffel was trying to enter 17 into a contract with FOX for $7.5 million regarding 18 the Rowe interview. He conducted the Rowe 19 interview. He told the police the Rowe interview 20 was not scripted. He apparently didn’t make any 21 money off of the Rowe interview and apparently 22 wanted to. He had -- he met Konitzer, who was also 23 involved in the Rowe interview. He had a 24 relationship with Konitzer. They apparently talked 25 on a number of occasions. He was in Florida with 26 these individuals. 27 THE COURT: I think what we should do is -- 28 you know, some of those things may not be subject to 8279 1 the shield law. Some may. The District Attorney 2 has finished his examination. I’ve made the ruling, 3 which I’m not changing, on the state of mind that -- 4 so now the question arises under Delaney. 5 So, in order to find out where we really are 6 under Delaney, I think you have to ask the witness 7 some questions, and we have to see which ones he 8 answered and which ones he claims are unpublished 9 and he has a privilege, and I’ll have to look at the 10 case from that standpoint. 11 MR. MESEREAU: Okay. 12 MS. SAGER: And the only thing I would like 13 to add, Your Honor, is under the Delaney test, the 14 test that -- 15 THE COURT: You need to -- 16 MS. SAGER: I’m sorry, Your Honor. I’m not 17 used to using these microphones. 18 Under the Delaney test, it’s not only the 19 threshold test, which is what Mr. Mesereau 20 presented, of whether the information sought is 21 reasonably likely to materially assist the defense. 22 That’s simply the threshold. 23 Assume he gets past that. Then the Court 24 engages in a balancing of all the other factors in 25 Delaney. It’s not simply enough that he meet that 26 one test. 27 THE COURT: That’s right. Then we look to 28 see the balance, I agree. 8280 1 So you may question. 2 MR. MESEREAU: Thank you, Your Honor. 3 Q. Mr. Drew, do you know someone named Marc 4 Schaffel? 5 A. I did. 6 Q. You did? 7 A. Uh-huh. 8 Q. When did you first meet Marc Schaffel? 9 MS. SAGER: Your Honor, I’d object to the 10 extent that reveals unpublished information. And 11 also point out, Your Honor, that really has very 12 little relevance to the one statement that Mr. Drew 13 has been asked about by the prosecution that was 14 published. You’re now talking about an entirely 15 different individual, not even the individual that 16 he has spoken to that he talked about in his 17 interview. 18 MR. MESEREAU: With all due respect to 19 counsel, that’s not true, Your Honor. I will link 20 the relationship he has with Schaffel and Konitzer 21 to the impeachment I’m trying to demonstrate. But I 22 could ask the questions on Konitzer, and I’ll see if 23 he’s going to assert the privilege to those. Maybe 24 that would narrow it. Shall I do that, Your Honor? 25 THE COURT: Let me think. He’s already 26 testified that the -- that he was working for 27 Konitzer when he did the interview, right? 28 MS. SAGER: Actually, I don’t believe that’s 8281 1 correct. I believe he testified he was working for 2 a magazine and the interview was set up through Mr. 3 Konitzer and Mr. Schaffel, not that he was working 4 for them. 5 And in fact, I think he testified -- and 6 counsel will correct me if I’m wrong. I believe he 7 was asked was he paid anything by them, and he said 8 no. Nor was he working for Mr. Jackson at any 9 point. 10 THE COURT: All right. For purposes of where 11 we are in the hearing, I’ll sustain the shield 12 objection on that question. 13 Q. BY MR. MESEREAU: Do you know someone named 14 Ronald Konitzer? 15 A. Yes. 16 Q. And how long have you known Ronald Konitzer? 17 MS. SAGER: Same objection, Your Honor, to 18 the extent that that’s not been published, the 19 extent of the length of their relationship or 20 knowledge. Simply the fact that he knows him has 21 been published. 22 THE COURT: Well, I think I need you to be 23 more clear in your objection. You’re saying “to the 24 extent that that has not been published.” I mean, 25 you have to make a claim that that’s not been 26 published; that, “Your Honor, that has not been 27 published,” so I know that. I don’t really know 28 that, the way you’re stating it. 8282 1 MS. SAGER: I apologize, Your Honor, and the 2 only reason I’m couching it the way I am is because 3 Mr. Mesereau seems to believe that some things are 4 publications which I don’t agree with and the Court 5 hasn’t ruled on. There is an interview that does 6 not contain the information that Mr. Mesereau is 7 asking about and that’s the publication that we’re 8 looking at. That information is not published, as 9 far as I’m aware. 10 THE COURT: Well, I don’t think you can limit 11 it to that interview. I mean, if he’s published it 12 anywhere, in any magazine, or any news, or T.V., 13 or -- you know, the definition really doesn’t even 14 involve media. If it’s -- I guess if it’s 15 dissemination to the public, he could do it 16 personally walking around the mall over there. 17 So we have to -- when you claim he’s being 18 asked to reveal something that he hasn’t published, 19 it has to be he hasn’t published it. Not that he 20 didn’t talk about it in the interview with the -- 21 which interview are we talking about? 22 MS. SAGER: The Court TV interview, Your 23 Honor. 24 THE COURT: The Court TV interview that he 25 was interviewed on. That is not the only place that 26 he could have published. He may have published it 27 nowhere else, but we need to be clear. We aren’t 28 limiting this to that. 8283 1 MS. SAGER: I understand, Your Honor. And 2 so my objection is that Mr. Mesereau is calling for 3 information which is unpublished within the meaning 4 of the shield law. 5 THE COURT: All right. For purposes of this 6 hearing right now at this point, just to see where 7 we’re going, I will sustain the claim under the 8 shield law. 9 Q. BY MR. MESEREAU: When did you first meet 10 Ronald Konitzer? 11 MS. SAGER: Same objection, Your Honor. 12 That’s unpublished information. 13 THE COURT: All right. For purposes of this 14 hearing right now, I’ll sustain that claim under the 15 shield law. 16 Q. BY MR. MESEREAU: Where did you first meet 17 Ronald Konitzer? 18 MS. SAGER: Same objection, Your Honor. 19 THE COURT: All right. And I’ll make the 20 same ruling for purposes of this hearing. 21 Q. BY MR. MESEREAU: When you first met Ronald 22 Konitzer, who else was present? 23 MS. SAGER: Same objection, Your Honor. 24 THE COURT: I’ll sustain the objection under 25 the shield law. 26 Q. BY MR. MESEREAU: When you first met Ronald 27 Konitzer, in your mind, what was the purpose of the 28 meeting? 8284 1 MS. SAGER: Same objection, Your Honor. 2 Also that Mr. Drew’s state of mind is not at issue 3 here. 4 MR. MESEREAU: I think it is on cross, Your 5 Honor. 6 THE COURT: I’ll sustain it under the shield 7 law. 8 Q. BY MR. MESEREAU: How many times have you 9 met with Ronald Konitzer? 10 MS. SAGER: Same objection, Your Honor, as 11 to unpublished information. 12 THE COURT: I’ll sustain the objection under 13 the shield law. 14 Q. BY MR. MESEREAU: Have you ever discussed 15 Michael Jackson with Ronald Konitzer? 16 MS. SAGER: And I would object to the extent 17 that it seeks information that has not been 18 published. 19 THE COURT: That’s an insufficient objection. 20 I’ll overrule it. 21 MS. SAGER: I understand, and the only 22 reason I’m couching it that way is the question, as 23 phrased, is ambiguous. But I’ll object to the 24 question as calling for information that is not 25 published. 26 THE COURT: All right. I’ll sustain that 27 under the shield law for this hearing. 28 Q. BY MR. MESEREAU: Have you ever had a 8285 1 discussion with Ronald Konitzer about the 2 possibility of interviewing the Arvizo family? 3 A. Yes. 4 Q. When did that discussion take place? 5 A. It took place the week after the Debbie Rowe 6 interview. 7 Q. When was the Debbie Rowe interview? 8 A. I believe, from my recollection, it was 9 March of 2003. 10 Q. Were you at the Debbie Rowe interview? 11 A. Yes, I did the Debbie Rowe interview. 12 Q. Are you the person who asked Debbie Rowe 13 questions in that interview? 14 A. Yes. 15 Q. You’ve told the police that interview was 16 not scripted, correct? 17 MS. SAGER: Your Honor, and I’d again object 18 that this is not published information. 19 MR. ZONEN: And I would also interject an 20 objection that it exceeds the scope of the direct 21 examination. 22 THE BAILIFF: You guys have to use the 23 microphone. 24 MR. ZONEN: I would object that it exceeds 25 the scope of the direct examination. 26 THE COURT: Sustained. 27 Q. BY MR. MESEREAU: Was the Debbie Rowe 28 interview scripted? 8286 1 MS. SAGER: Same -- 2 MR. ZONEN: Objection; exceeds the scope of 3 the direct examination. 4 MS. SAGER: Also unpublished, Your Honor. 5 THE COURT: Sustained on both grounds. 6 Q. BY MR. MESEREAU: Was Ronald Konitzer at the 7 Debbie Rowe interview? 8 MS. SAGER: Objection, Your Honor. Calls 9 for unpublished information. 10 THE COURT: Sustained under the shield law. 11 Q. BY MR. MESEREAU: Now, you said, in response 12 to the prosecutor’s questions, that Mr. Konitzer 13 referred to the Arvizo family leaving Neverland 14 Ranch, right? 15 A. Yes. 16 Q. And your first response to the prosecutor’s 17 question was that Konitzer told you that they had 18 disappeared from Neverland Ranch, correct? 19 A. Yes. 20 Q. After being further asked questions by the 21 prosecutor, you said that Konitzer had used the word 22 “escape,” right? 23 A. I said I believed he had used the word 24 “escape.” I remembered it. 25 Q. You didn’t use the word “escape” when you 26 first responded to the prosecutor’s question about 27 what Mr. Konitzer had said, right? 28 A. I think I did. I think it was all within 8287 1 the same sentence, from my recollection. 2 Q. You said “disappear,” did you not? 3 A. That was part of it, too. 4 Q. Now, how long did your discussion with 5 Konitzer take place on that particular occasion? 6 MS. SAGER: Objection, Your Honor. Calls 7 for unpublished information. 8 THE COURT: All right. Sustained under the 9 shield law. 10 Q. BY MR. MESEREAU: Were other things said by 11 Mr. Konitzer to you on the occasion when you claim 12 he made that statement? 13 MS. SAGER: Same objection, Your Honor. 14 Calls for unpublished information. 15 THE COURT: Sustained. 16 Q. BY MR. MESEREAU: How long did that 17 discussion last? 18 MS. SAGER: Same objection, Your Honor. 19 THE COURT: Sustained. 20 Q. BY MR. MESEREAU: Did you say something to 21 Mr. Konitzer in that discussion? 22 MS. SAGER: And I’ll object, Your Honor, to 23 the extent that it calls for information that has 24 not been published. It was one word, I believe, Mr. 25 Drew has published, which I’ll let him answer. 26 THE COURT: All right. Answer the one, the 27 word, following your attorney’s instructions. 28 MS. SAGER: If you recall. 8288 1 THE WITNESS: I don’t. I don’t remember. 2 Q. BY MR. MESEREAU: Where did the discussion 3 take place? 4 MS. SAGER: Same objection, Your Honor. 5 Calls for unpublished information. 6 THE COURT: Sustained. 7 Q. BY MR. MESEREAU: Who else was there with 8 you and Konitzer? 9 MS. SAGER: Same objection, Your Honor. 10 Also assumes facts not in evidence. 11 THE COURT: Under the shield law objection, 12 I’ll sustain the objection. 13 Q. BY MR. MESEREAU: Was anyone else there with 14 you and Mr. Konitzer? 15 MS. SAGER: Calls for unpublished 16 information, Your Honor. 17 THE COURT: Sustained. 18 Q. BY MR. MESEREAU: Did you arrange for the 19 discussion where you claim Mr. Konitzer made that 20 statement? 21 MS. SAGER: I believe it’s vague, Your 22 Honor, but it’s information that is published, so 23 I’ll let the witness answer, if he recalls. 24 THE WITNESS: Yes, I was trying to get an 25 interview, so I think I -- I think I made the phone 26 call, because I’m pretty dogged about that usually. 27 Q. BY MR. MESEREAU: Where were you when you 28 made the phone call? 8289 1 MS. SAGER: Calls for unpublished 2 information, Your Honor. 3 THE COURT: Sustained. 4 Q. BY MR. MESEREAU: Did you call Konitzer’s 5 number? 6 MS. SAGER: Same objection, Your Honor. 7 THE COURT: Sustained. 8 MR. MESEREAU: Your Honor, I believe at this 9 point it’s pretty clear I wouldn’t be able to 10 cross-examine the witness on any of this; we would 11 be prejudiced. And I believe, under the Delaney 12 case, the witness should be disqualified from 13 testifying. I’m not being allowed to cross-examine 14 on anything regarding the bona fides of what he said 15 and in what context it was said, who was there, 16 where it took place. 17 And again, I would refer the Court to the 18 holding in the Delaney case. All we have to show is 19 a reasonable possibility the information will 20 materially assist the defense. And the material 21 assistance would be in examining the veracity, the 22 motives, the bias of this witness. 23 MS. SAGER: And, Your Honor, I believe under 24 the Foss case, that disqualification of the witness 25 is the appropriate measure to take rather than 26 allowing any counsel to get into information that 27 clearly is protected by the shield law, so that even 28 published information should not be presented if 8290 1 then, to allow cross-examination, would delve into 2 constitutionally protected information. 3 THE COURT: Mr. Drew? 4 THE WITNESS: Uh-huh. 5 THE COURT: I’m looking at the testimony 6 you’ve already given. What I want to do is read to 7 you what you said about the -- just that one 8 sentence is all we’re talking about. I want to read 9 to you that sentence, and I want to ask you a couple 10 of questions about why you said that sentence. 11 THE WITNESS: Okay. 12 THE COURT: But to do that, I want to read it 13 to you, so I’m going to ask you to listen to this: 14 The question by Mr. Zonen was, “What 15 specifically did he say with regard to the 16 disappearance of this family? “Would it be helpful 17 if the witness was given a transcript of the 18 television program? We can do that.” 19 I say something, and then Mr. Zonen says 20 something. 21 And then Mr. Zonen says, “Well,” as a 22 question mark, and you say, “It’s a simple enough 23 question, I think. I was told that they had 24 disappeared, that they couldn’t keep them there 25 anymore.” 26 There’s some objections. 27 And you say, “And I believe the word 28 ‘escaped’ was used. But again, I don’t -- I can’t 8291 1 say word for word. But from the best of my 2 recollection, yes, I heard the word ‘escape.’” 3 First of all, what you’ve already answered, 4 does that accurately reflect your recollection of 5 that conversation? 6 THE WITNESS: Uh-huh. Yes. 7 THE COURT: What is your -- if you can answer 8 this, what is the failure of your recollection about 9 the word “escaped”? 10 THE WITNESS: No, it’s to the best of my 11 recollection. When I was talking to Mr. Konitzer, I 12 was simply trying to get -- I was on a deadline 13 trying to get an article done, so I wasn’t paying 14 attention word for word, knowing that in a trial two 15 years later I would have to remember each part of 16 it. I remember the tone of his conversation more 17 than I remember even the exact words. 18 THE COURT: Okay. Thanks. 19 Mr. Mesereau, is there anything in the 20 police reports that you have that you would like to 21 represent to me -- 22 MR. MESEREAU: First of all, Your Honor, as 23 the Court knows, in many of my prior 24 cross-examinations of witnesses, I have asked them 25 when they -- excuse me, if they ever met with any 26 representative of the Santa Barbara Sheriff’s 27 Department; who initiated the meeting; what was 28 said; who said what; did the sheriffs say anything 8292 1 to you about the case? 2 And the reasons are obvious. We want to 3 establish if, in fact, the prosecution or its agents 4 have tried to infect any witness with information of 5 a specific nature or give them a perspective on the 6 case or try and indoctrinate them in some way. We 7 also want to establish if the witnesses have said 8 anything to the sheriffs which suggests a desire to 9 be involved in this case or a desire to -- 10 THE COURT: I think you didn’t let me finish 11 my question. 12 MR. MESEREAU: Oh. I’m sorry. Pardon me. 13 THE COURT: The question I wanted to ask, is 14 there anything in the police reports that he said in 15 the interview with the sheriff’s department or any 16 law enforcement people that you want to show me or 17 advise me of? You know, as opposed to the questions 18 that you would ask, any information contained 19 therein that you believe is, you know, material that 20 would -- 21 MR. MESEREAU: Yes, Your Honor. I mean, 22 first of all -- 23 THE COURT: -- materially assist your defense 24 if he were to testify to it? 25 MR. MESEREAU: Yes, Your Honor. There is 26 the business relationship between this witness and 27 Schaffel and Konitzer, as I would like to establish, 28 is that he had a relationship with them. He was 8293 1 involved in their efforts to make money off of 2 Michael Jackson. The -- 3 THE COURT: That’s -- just to be clear now, 4 that’s in the police report? 5 MR. MESEREAU: Yes, Your Honor. He 6 conducted the Debbie Rowe interview. He was working 7 out of Schaffel’s residence. He was promised he 8 could interview the Arvizo family. He had a 9 financial interest in working with Schaffel and 10 Konitzer. He then was apparently told, “You’re not 11 going to be interviewing the Arvizo family because 12 they left Neverland.” 13 And then the question is, what kind of 14 relationship did he continue to have with them? 15 What money did he expect to make? Who was supposed 16 to pay him for doing all of this? Did he think he 17 was going to be involved in the FOX contract? He 18 did tell the sheriffs that he saw, in fact, a FOX 19 contract at Schaffel’s residence during the 20 approximately three-week period of time that he 21 worked out of Mr. Schaffel’s residence. 22 And the question would be, why did he look 23 at the contract? How did he know it said $7.5 24 million from FOX? What interest did he think he 25 had? Has he had a falling-out with Konitzer? When 26 did he last talk to any of these people? 27 He did not obtain this so-called quote in 28 isolation, and he didn’t obtain it in a casual, 8294 1 unexpected occurrence or meeting. He obtained it, 2 if he did, within the context of an ongoing business 3 relationship with Konitzer and Schaffel, who the 4 prosecution allege are unindicted co-conspirators. 5 And the motives for coming forward and making this 6 allegation on T.V. and in court are fertile ground 7 for cross-examination where the scope of 8 cross-examination is very broad to show any type of 9 financial motive, financial bias, or a bias to say 10 anything that hurts his former co-business partners, 11 which in fact they were. So we would be severely 12 hamstrung if we could not go into these 13 relationships and these motivations. 14 Now, he told the police that when he 15 interviewed Debbie Rowe, he was working out of 16 Schaffel’s residence for approximately three weeks. 17 He said that during that period of time, he saw the 18 FOX contract. He just told the Court that when he 19 got this information from Konitzer, he had a 20 deadline. How did that deadline relate to why he 21 was talking to Konitzer to begin with? What project 22 were they still involved in, if any? 23 And clearly his police interview, which was 24 conducted by him, as I said before, on a voluntary 25 basis, talks about how he met these characters, how 26 he stayed in contact with them, where he called them 27 from, how the interview with the Arvizos he thought 28 he was going to do related to the interview with 8295 1 Debbie Rowe. It’s all part of the same package. 2 And, Your Honor, there are tapes where he 3 and Debbie Rowe complain about Schaffel and 4 Konitzer. There is the issue of his falling-out 5 with them. It’s all interconnected. 6 THE COURT: Okay. Do you want to be heard, 7 Mr. Zonen? 8 MR. ZONEN: Your Honor, the police report in 9 this matter is four pages of text, and I think it 10 would be appropriate for the Court to review it, and 11 I would invite the Court to review it to make the 12 determination as to whether -- would you like me at 13 the podium? 14 THE COURT: Yes. 15 MR. ZONEN: The Court specifically made the 16 inquiry as to whether or not there’s information 17 contained in the police report as might justify 18 extensive cross-examination of this witness with 19 regards to information given by the witness to 20 detectives in the course of that interview. 21 Rather than debate what is and what isn’t, 22 it’s a very brief report. It’s only four pages of 23 large script. And I would ask that the Court read 24 it to make a determination as to whether or not that 25 would assist the Court in its judgment. 26 Once again, the prosecution is offering one 27 sentence in this case. It’s a conversation that 28 took place between this witness and another person, 8296 1 one of the unindicted co-conspirators, to the extent 2 this that person said to this witness, “They’ve 3 left,” and the words of how they left. It’s 4 effectively one or two sentences. 5 I do not believe that that warrants and 6 justifies extensive cross-examination on the 7 relationships and interrelationships between each of 8 the five unindicted co-conspirators and this witness 9 and any of the co-conspirators among themselves at 10 any point in history. I also don’t believe it 11 justifies an examination into his involvement in the 12 interview with Debbie Rowe, which was an entirely 13 separate interview and separate people involved. 14 As to the question of what he can be 15 cross-examined on in the course of the interview 16 with the -- the “interview” -- the two-sentence 17 conversation with Mr. Konitzer, I think that he can 18 be cross-examined on information that would shed 19 light on what was going on at that time and the 20 accuracy of that statement, and it is a statement 21 that is relatively noncontroversial. It is not the 22 type of thing that a thorough examination of the 23 relationships of these parties would necessarily 24 disprove or as to motivation. 25 And so I believe that until the defense 26 satisfies the burden, which they have, for the 27 purposes of showing that there is information out 28 there, and they’re not simply on a fishing 8297 1 expedition, but that there is concrete information 2 that would somehow show that this statement was 3 never made, or, if it was made, had a different 4 meaning, or in fact was a statement that’s entirely 5 different from what it was as it’s represented by 6 this witness, and I believe that they can do that 7 within the limitations of the Court and within the 8 limitations imposed by the shield law. 9 I have the report to turn over to the Court, 10 if that’s permissible. 11 MR. MESEREAU: If I may, Your Honor, there 12 are other reports as well. There’s a number of 13 pretext phone calls where he discusses the same 14 issues identified in that police interview. 15 I suspect Miss Sager is going to say they’re 16 privileged, but they do relate to the same facts. 17 They give us a good-faith basis, in addition to what 18 I just told the Court, to inquire into his 19 relationship with Konitzer and Schaffel, and what 20 his expectations were, what happened to the money he 21 thought he was going to get, et cetera. 22 I think the Court would have to look at 23 those as well. There aren’t that many of them and 24 I have them with me. I also have transcripts of 25 those pretext phone calls. 26 THE COURT: And do both of you agree and 27 stipulate that I can review those reports in 28 conjunction with reaching a decision on this? 8298 1 MR. ZONEN: Yes. 2 MR. MESEREAU: Yes, Your Honor. 3 THE COURT: All right. Would you provide 4 those to me? 5 MR. MESEREAU: Yes. 6 MS. SAGER: Your Honor, we have not been 7 provided with those reports, and for purposes of 8 arguing this motion, it would greatly assist me, if 9 the Court is going to consider them, if we also were 10 allowed to review them. 11 THE COURT: Certainly. 12 MR. ZONEN: I will do so. 13 THE COURT: You can step down. There’s no 14 sense in sitting there while we’re trying to figure 15 this out. 16 MR. ZONEN: How clean are your copies? 17 MR. MESEREAU: They’re pretty clean. 18 MR. ZONEN: Do you just have yellow 19 highlights? 20 MR. MESEREAU: Yeah, but also -- there are 21 transcripts as well. 22 MR. ZONEN: You don’t have material written 23 into them? 24 MR. MESEREAU: Not really, no. 25 MR. ZONEN: Okay. 26 MR. MESEREAU: It may take a moment. I’m 27 just trying to staple these reports together, Your 28 Honor. 8299 1 THE COURT: All right. 2 I think what I’d like to do, Lieutenant, 3 would it work all right, when I take these back to 4 read, if I declare a recess? And then you can -- so 5 these folks don’t have to sit in here? Is that all 6 right? And then we can bring them back in. It 7 looks like I’m going to be a few minutes reading. 8 LIEUTENANT McKINNY: That’s fine, Your Honor. 9 THE COURT: That would give them five 10 minutes’ notice to bring them back into the 11 courtroom, or let them, excuse me, back in the 12 courtroom. 13 MR. MESEREAU: Your Honor, I might add that 14 this witness’s name comes up in other reports 15 dealing with interviews with other individuals and 16 investigations into other individuals. Information 17 regarding this witness was seized at Schaffel’s 18 house, for example. 19 So I don’t want to suggest that the scope of 20 examination or the good-faith basis for questions 21 about his relationship with these people are purely 22 based on what I’m giving you. There’s other stuff, 23 too. 24 THE COURT: Okay. 25 MR. MESEREAU: May I approach? 26 THE COURT: Yes. 27 All right. Then we’ll take this recess. 28 (Recess taken.) 8300 1 THE COURT: Counsel, would you like to 2 retrieve the police reports? 3 THE BAILIFF: I can get them. 4 MR. MESEREAU: Thank you, Your Honor. 5 THE COURT: All right. The Court is going to 6 make the following order: That the Court finds that 7 the probative value of the statement offered by Mr. 8 Drew is questionable; that if the statement was 9 introduced into evidence, the statement might lend 10 itself to proving somewhat the conspiracy, but the 11 only value I see of the statement -- the only 12 evidentiary value of the statement would be to prove 13 Konitzer’s state of mind, which is not Mr. Jackson’s 14 state of mind, and may very well not be appropriate 15 to admit under any circumstances. Because even 16 though it’s a co-conspirator’s state of mind, it 17 would be unlikely helpful in proving Mr. Jackson’s 18 involvement. It wouldn’t prove his involvement. 19 In addition to that, there is some real 20 vagueness in the statement as recalled by the 21 witness, since he does not recall exactly what was 22 said, but more the sense of what was said, and isn’t 23 sure where the word “escaped” fit in. 24 Considering these items, in balancing under 25 Delaney, the Court does not believe that the shield 26 law is overcome in this case. The shield law then 27 remains in effect. 28 That effectively bars the defense from 8301 1 cross-examination on the statement which I’ve 2 already determined to have some questionable value. 3 Therefore, the Court finds the only appropriate 4 remedy is to deny the People’s request to admit the 5 statement. 6 MR. ZONEN: Your Honor, we have no further 7 witnesses for the day. 8 THE COURT: What I would like to do is excuse 9 the jury. There’s two ways to do that. Probably 10 the cruelest way would be to -- 11 MR. ZONEN: Send the bailiff in there? 12 THE COURT: -- file them in here and then 13 tell them. In fact, I don’t think I could face 14 them. 15 (Laughter.) 16 THE COURT: No, I better face them, though. 17 Let’s bring them in. 18 MS. SAGER: Your Honor, is Mr. Drew excused? 19 THE COURT: I’ll be a man about this. 20 Yes. You’re excused. 21 MS. SAGER: Thank you. 22 THE COURT: It’s my custom to not be on the 23 bench when the jury comes in, so I think I’ll leave. 24 25 (The following proceedings were held in 26 open court in the presence and hearing of the 27 jury:) 28 8302 1 THE COURT: Good afternoon. 2 THE JURY: (In unison) Good afternoon. 3 THE COURT: (To counsel) You tell them. 4 (Laughter.) 5 THE COURT: Because of rulings that I’ve made 6 today, we have no further witnesses. 7 I am advised by the District Attorney that 8 they have two days left in their case, Monday and 9 Tuesday, and they will be full days, without delays. 10 So I apologize for keeping you here all day 11 today like this. I didn’t anticipate, of course, 12 the length of time that was going to be involved, 13 and I tried very hard not to do that to you. 14 I know how crummy it is to sit back there 15 and not have anything to do and not know what’s 16 going on, and it’s just one of my things I just 17 don’t do. And we have gone through a lot of days 18 without doing that to you, so I’ll try to get 19 through a lot more before it happens again. 20 So I’ll see you next week. 21 Court’s in recess. 22 (The proceedings adjourned at 1:25 p.m.) 23 --o0o-- 24 25 26 27 28 8303 1 REPORTER’S CERTIFICATE 2 3 4 THE PEOPLE OF THE STATE OF ) 5 CALIFORNIA, ) 6 Plaintiff, ) 7 -vs- ) No. 1133603 8 MICHAEL JOE JACKSON, ) 9 Defendant. ) 10 11 12 I, MICHELE MATTSON McNEIL, RPR, CRR, CSR 13 #3304, Official Court Reporter, do hereby certify: 14 That the foregoing pages 8207 through 8303 15 contain a true and correct transcript of the 16 proceedings had in the within and above-entitled 17 matter as by me taken down in shorthand writing at 18 said proceedings on April 29, 2005, and thereafter 19 reduced to typewriting by computer-aided 20 transcription under my direction. 21 DATED: Santa Maria, California, 22 April 29, 2005. 23 24 25 26 27 MICHELE MATTSON McNEIL, RPR, CRR, CSR #3304 28 OFFICIAL COURT REPORTER 8304