Sneddon's testimony on Monday holds risks for both sides
8/15/04
By DAWN HOBBS
NEWS-PRESS STAFF WRITER
Michael Jackson's defense lawyers may reel in more than details about an alleged illegal raid when they put Santa Barbara County District Attorney Tom Sneddon on the stand Monday -- they'll also likely get a sneak preview of the prosecutor's child molestation case against the entertainer.
In a rare move, defense attorneys have subpoenaed the district attorney to testify as a witness in the case he is prosecuting. They have also called the prosecutor's key witnesses, including the young accuser's mother, the boy's psychiatrist and the family's first civil attorney.
Legal experts say putting Mr. Sneddon in the hot seat gives the defense a chance to discredit him, and questioning Mr. Sneddon's own witnesses may give them insights into the government's investigation.
"It's a field day for defense lawyers when they get a prosecutor on the stand," said Laurie Levenson, professor at Loyola School of Law.
The defense strategy is not without risks, legal experts say. Mr. Sneddon could stumble on the stand or he could prove to be an impressive witness with full command of the case.
The testimony could also give the public a glimpse of a high-profile case that has been shrouded in secrecy. Details have been scarce since Santa Barbara Superior Court Judge Judge Rodney Melville issued a gag order that silenced attorneys and witnesses. The judge has also sealed almost all court documents in the case.
While the case is still months from trial, the hearing is the result of a defense motion to suppress the evidence that law enforcement officers seized from a private investigator's office. Defense lawyers have subpoenaed witnesses to determine if the search was illegal. The defense will also likely attack the other two raids conducted on Nov. 18, 2003 -- at Mr. Jackson's Neverland Valley Ranch and at the West Hills home of videographer Hamid Moslehi. Witnesses who will be questioned about those searches will likely be called later in the week.
A significant part of the defense strategy has been to question Mr. Sneddon's involvement through accusations of prosecutorial misconduct during grand jury proceedings and in preparation for the raid of the private investigator's office.
Mr. Jackson is expected to be seated at the defense table Monday with his family behind him while his lead lawyer, Thomas Mesereau, questions Mr. Sneddon.
"It's an opportunity for the defense to get a message out to the potential jury pool about questions regarding the credibility and professionalism of the prosecution," Ms. Levenson said. "Just by the way the questions are asked, the defense can present their side. . . . And this is a way to point out any possible weaknesses in the prosecution's case or at least how they think they have not been playing fairly."
However, Mr. Sneddon could be convincing, confident and immune to Mr. Mesereau's prodding.
"Mesereau may not be able to shake him," Ms. Levenson said. "Then people will walk away with the impression the prosecution is in good hands. Sneddon could hit a home run, but there are a lot of ways for him to strike out or hit foul."
On Monday, questioning is likely to focus on whether Mr. Sneddon knew, or reasonably should have known, that private investigator Bradley Miller was working for Mr. Jackson's lawyer at the time, Mark Geragos, when he issued an affidavit to raid the investigator's Beverly Hills office in November 2003.
On July 27, at the last hearing in the case, Judge Melville said he was taking the allegations of misconduct very seriously and approved the defense subpoenas. Mr. Sneddon told the judge he was ready to testify that morning and that he had "nothing to hide."
But the judge postponed the testimony until Monday.
"Judges are reluctant to have prosecutors testify in their own cases -- it's not unheard of, but it's rare," Ms. Levenson said. "However, a prosecutor creates the situation when he goes out as a prosecutor and witness in the same case."
Judge Melville will likely instruct the defense to limit questioning to the topic of the Beverly Hills raid, Ms. Levenson said: "The judge really has to keep a tight rein on it or it could easily get out of control. . . . The judge has to keep the questioning focused on the issue at hand, which is whether the prosecutors knew Miller was working for Jackson's attorney."
Mr. Jackson's lawyers have alleged that Mr. Sneddon knew law enforcement was raiding the defense camp. Co-counsel Robert Sanger asserts that a memo written by Mr. Sneddon shows he was aware that Mr. Miller was a private investigator for Mr. Geragos. The memo says that before the Nov. 18, 2003, raid Mr. Sneddon surveilled Mr. Miller's office and photographed the roster of tenants in the building and the building itself. He then met the accuser's mother to conduct a photo lineup, which included a photo of Mr. Miller.
"Sneddon may try to disassociate himself from the police conduct of sledgehammering their way into the private investigator's office," said Robert Pugsley, professor at Southwestern University School of Law.
"But he certainly cannot disassociate himself from being a self-appointed investigator in this project," Mr. Pugsley said. "He scoped out the building, took photographs, and went to great lengths to make sure the police knew where to go. . . . This is extraordinary activity for a district attorney to do. He has police to do this. He has a DA's investigative staff to do this. The lead prosecutor does not go out by himself and make these kinds of investigations and develop the case in this way."
Regardless of Judge Melville's ruling on the issue, Mr. Pugsley said: "It seems to me Mr. Sneddon may have put himself in a very difficult position that could potentially damage the ability of his office to successfully prosecute the case."
Mr. Sneddon has said he was already in the Los Angeles area when he learned of what needed to be done there for the Jackson case and offered to do it himself to save Santa Barbara detectives driving time.
However, by doing so, Mr. Sneddon may have discarded his prosecutorial immunity, one expert said.
"Prosecutors can actually charge, prosecute and knowingly convict an innocent defendant and that prosecutor is still immune from civil liability," said well-known trial lawyer Gerry Spence.
"But when the prosecutor disrobes -- that is, takes off the protective garment of the prosecutor -- and engages in another aspect of the case, namely the investigative procedure in this case, the general rule is that he loses his immunity from suit and can be sued for his conduct," Mr. Spence said.
The defense move could also be a way to lay the groundwork for getting Mr. Sneddon removed from the case.
"They'll get to push buttons and test his personality," Ms. Levenson said. "It would be hard to get him recused, but one of the issues they would explore is what Sneddon's personal investment in this case is. So this could easily generate other motions, including a motion to recuse."
Regardless of the outcome of the hearing, however, it will provide the defense with more ammunition for trial. When Mr. Sneddon opted in April to conduct a secret grand jury proceeding rather than a public preliminary hearing, the defense team was cut out of the process. While prosecutors have already questioned key witnesses, this is the first opportunity for the defense to question them.
The defense has the transcript from the grand jury hearing, which can be used to impeach witnesses during trial. But now they'll also have the transcript from this hearing.
"This presents a huge danger for the prosecution," Ms. Levenson said. "Every time the defense gets a witness on record, the more they have to use against them if there are inconsistencies during trial."
:nav Source: http://news.newspress.com/topsports/081504sneddon.htm
8/15/04
By DAWN HOBBS
NEWS-PRESS STAFF WRITER
Michael Jackson's defense lawyers may reel in more than details about an alleged illegal raid when they put Santa Barbara County District Attorney Tom Sneddon on the stand Monday -- they'll also likely get a sneak preview of the prosecutor's child molestation case against the entertainer.
In a rare move, defense attorneys have subpoenaed the district attorney to testify as a witness in the case he is prosecuting. They have also called the prosecutor's key witnesses, including the young accuser's mother, the boy's psychiatrist and the family's first civil attorney.
Legal experts say putting Mr. Sneddon in the hot seat gives the defense a chance to discredit him, and questioning Mr. Sneddon's own witnesses may give them insights into the government's investigation.
"It's a field day for defense lawyers when they get a prosecutor on the stand," said Laurie Levenson, professor at Loyola School of Law.
The defense strategy is not without risks, legal experts say. Mr. Sneddon could stumble on the stand or he could prove to be an impressive witness with full command of the case.
The testimony could also give the public a glimpse of a high-profile case that has been shrouded in secrecy. Details have been scarce since Santa Barbara Superior Court Judge Judge Rodney Melville issued a gag order that silenced attorneys and witnesses. The judge has also sealed almost all court documents in the case.
While the case is still months from trial, the hearing is the result of a defense motion to suppress the evidence that law enforcement officers seized from a private investigator's office. Defense lawyers have subpoenaed witnesses to determine if the search was illegal. The defense will also likely attack the other two raids conducted on Nov. 18, 2003 -- at Mr. Jackson's Neverland Valley Ranch and at the West Hills home of videographer Hamid Moslehi. Witnesses who will be questioned about those searches will likely be called later in the week.
A significant part of the defense strategy has been to question Mr. Sneddon's involvement through accusations of prosecutorial misconduct during grand jury proceedings and in preparation for the raid of the private investigator's office.
Mr. Jackson is expected to be seated at the defense table Monday with his family behind him while his lead lawyer, Thomas Mesereau, questions Mr. Sneddon.
"It's an opportunity for the defense to get a message out to the potential jury pool about questions regarding the credibility and professionalism of the prosecution," Ms. Levenson said. "Just by the way the questions are asked, the defense can present their side. . . . And this is a way to point out any possible weaknesses in the prosecution's case or at least how they think they have not been playing fairly."
However, Mr. Sneddon could be convincing, confident and immune to Mr. Mesereau's prodding.
"Mesereau may not be able to shake him," Ms. Levenson said. "Then people will walk away with the impression the prosecution is in good hands. Sneddon could hit a home run, but there are a lot of ways for him to strike out or hit foul."
On Monday, questioning is likely to focus on whether Mr. Sneddon knew, or reasonably should have known, that private investigator Bradley Miller was working for Mr. Jackson's lawyer at the time, Mark Geragos, when he issued an affidavit to raid the investigator's Beverly Hills office in November 2003.
On July 27, at the last hearing in the case, Judge Melville said he was taking the allegations of misconduct very seriously and approved the defense subpoenas. Mr. Sneddon told the judge he was ready to testify that morning and that he had "nothing to hide."
But the judge postponed the testimony until Monday.
"Judges are reluctant to have prosecutors testify in their own cases -- it's not unheard of, but it's rare," Ms. Levenson said. "However, a prosecutor creates the situation when he goes out as a prosecutor and witness in the same case."
Judge Melville will likely instruct the defense to limit questioning to the topic of the Beverly Hills raid, Ms. Levenson said: "The judge really has to keep a tight rein on it or it could easily get out of control. . . . The judge has to keep the questioning focused on the issue at hand, which is whether the prosecutors knew Miller was working for Jackson's attorney."
Mr. Jackson's lawyers have alleged that Mr. Sneddon knew law enforcement was raiding the defense camp. Co-counsel Robert Sanger asserts that a memo written by Mr. Sneddon shows he was aware that Mr. Miller was a private investigator for Mr. Geragos. The memo says that before the Nov. 18, 2003, raid Mr. Sneddon surveilled Mr. Miller's office and photographed the roster of tenants in the building and the building itself. He then met the accuser's mother to conduct a photo lineup, which included a photo of Mr. Miller.
"Sneddon may try to disassociate himself from the police conduct of sledgehammering their way into the private investigator's office," said Robert Pugsley, professor at Southwestern University School of Law.
"But he certainly cannot disassociate himself from being a self-appointed investigator in this project," Mr. Pugsley said. "He scoped out the building, took photographs, and went to great lengths to make sure the police knew where to go. . . . This is extraordinary activity for a district attorney to do. He has police to do this. He has a DA's investigative staff to do this. The lead prosecutor does not go out by himself and make these kinds of investigations and develop the case in this way."
Regardless of Judge Melville's ruling on the issue, Mr. Pugsley said: "It seems to me Mr. Sneddon may have put himself in a very difficult position that could potentially damage the ability of his office to successfully prosecute the case."
Mr. Sneddon has said he was already in the Los Angeles area when he learned of what needed to be done there for the Jackson case and offered to do it himself to save Santa Barbara detectives driving time.
However, by doing so, Mr. Sneddon may have discarded his prosecutorial immunity, one expert said.
"Prosecutors can actually charge, prosecute and knowingly convict an innocent defendant and that prosecutor is still immune from civil liability," said well-known trial lawyer Gerry Spence.
"But when the prosecutor disrobes -- that is, takes off the protective garment of the prosecutor -- and engages in another aspect of the case, namely the investigative procedure in this case, the general rule is that he loses his immunity from suit and can be sued for his conduct," Mr. Spence said.
The defense move could also be a way to lay the groundwork for getting Mr. Sneddon removed from the case.
"They'll get to push buttons and test his personality," Ms. Levenson said. "It would be hard to get him recused, but one of the issues they would explore is what Sneddon's personal investment in this case is. So this could easily generate other motions, including a motion to recuse."
Regardless of the outcome of the hearing, however, it will provide the defense with more ammunition for trial. When Mr. Sneddon opted in April to conduct a secret grand jury proceeding rather than a public preliminary hearing, the defense team was cut out of the process. While prosecutors have already questioned key witnesses, this is the first opportunity for the defense to question them.
The defense has the transcript from the grand jury hearing, which can be used to impeach witnesses during trial. But now they'll also have the transcript from this hearing.
"This presents a huge danger for the prosecution," Ms. Levenson said. "Every time the defense gets a witness on record, the more they have to use against them if there are inconsistencies during trial."
:nav Source: http://news.newspress.com/topsports/081504sneddon.htm