PV CM AUGUST 29TH 2011

 

APPEARANCES:

DEFENDANT CONRAD ROBERT MURRAY, NOT PRESENT IN COURT PURSUANT TO 977 A. AND BEING REPRESENTED BY EDWARD CHERNOFF, J. MICHAEL FLANAGAN, NAREG GOURJIAN, MATT ALFORD, PRIVATELY RETAINED COUNSELS;

 

DISTRICT ATTORNEYS DEPUTY DAVID WALGREN AND DEBORAH BRAZIL,

 

THE COURT:   CALENDAR IS A MOTION IN LIMINE REGARDING PROPOSED DEFENSE WITNESSES FILED BY THE PEOPLE ON 25 AUGUST AND MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PEOPLE’S MOTION IN LIMINE REGARDING PROPOSED DEFENSE WITNESSES FILED THIS MORNING IN A TIMELY FASHION. I HAVEN’T HAD A CHANCE TO REVIEW AND CONSIDER THE POSITIONS OF THE PARTIES. ARE THE PEOPLE READY TO PROCEED, MR. WALGREN, MISS BRAZIL?

 

MR. WALGREN:   YES, YOUR HONOR.

THE COURT:   THE DEFENSE, MR. CHERNOFF?

MR. CHERNOFF:   WE ARE, JUDGE.

THE COURT:   MR. FLANAGAN?   MR. GOURJIAN?

MR. FLANAGAN:   YES.

MR. GOURJIAN:   YES.

 

THE COURT:   THANK YOU. I THINK IT BEST TO HANDLE THE VARIOUS ITEMS IN NUMERICAL ORDER.   SO IF YOU WOULD LIKE TO BE HEARD, MR. WALGREN, AFTER THE PEOPLE’S INTRODUCTION, THERE IS A SECTION CAPTIONED, “THE PEOPLE SEEK COMPLETE EXCLUSION OF ALL WITNESSES RELATED TO EVENTS ARISING OUT OF THE SANTA BARBARA LEGAL PROCEEDINGS.”   AND THEN THERE ARE, THERE IS A SUBCATEGORY AS TO THAT WITNESS. SO I WILL HEAR FROM THE PEOPLE.

 

MR. WALGREN:   THANK YOU, YOUR HONOR. THE PEOPLE DO SEEK TO EXCLUDE AS IRRELEVANT, PREJUDICIAL, AND HIGHLY INFLAMMATORY ANY REFERENCE AND ANY EVIDENCE RELATED TO OR ARISING OUT OF THE SANTA BARBARA ALLEGATIONS OR INVESTIGATION. AND IN THE PEOPLE’S MOTION IN LIMINE, WE ACTUALLY IDENTIFIED THE WITNESSES AS STEVE ROBEL AND OTHER UNKNOWN WITNESSES.   AND IN THE DEFENSE RESPONSE NUMEROUS OTHER WITNESSES HAVE NOW BEEN IDENTIFIED OR AT LEAST APPEAR TO ARISE OUT OF THE SANTA BARBARA INCIDENT.   SO WE WOULD HAVE THE SAME OBJECTION AS TO THOSE INDIVIDUALS. BUT IT IS THE PEOPLE’S POSITION THAT BASED ON THE DEFENSE OFFER OF PROOF TO DELVE INTO WHAT MAY OR MAY NOT HAVE BEEN RECOVERED DURING VARIOUS SEARCHES IN 2003 HAS ABSOLUTELY NOTHING TO DO WITH THE STANDARD OF MEDICAL CARE THAT WAS OR WAS NOT ADMINISTERED BY CONRAD MURRAY IN THE TIME PERIOD SURROUNDING MICHAEL JACKSON’S DEATH NOTABLY IN 2009, SIX YEARS LATER. THE PEOPLE ARE VERY CONCERNED THAT THIS IS SIMPLY AN ATTEMPT TO INFLAME THE JURY, AN ATTEMPT TO ESSENTIALLY CARRY OUT CHARACTER ASSASSINATION UPON THE VICTIM. AND THE PEOPLE ARE VERY CONCERNED WITH THE THOUGHT OF THIS TRIAL DETERIORATING INTO ATTACK ON MICHAEL JACKSON AS OPPOSED TO FOCUSING ON THE RELEVANT EVIDENCE AND THE EVIDENCE AS IT RELATES TO THE STANDARD OF CARE, THE MEDICAL CARE THAT DOCTOR MURRAY PROVIDED, AND THE CAUSE OF DEATH FOR MICHAEL JACKSON AT 50-YEARS OLD ON JUNE 25, 2009. SO THE PEOPLE DO SEEK COMPLETE EXCLUSION AND A BAR TO ANY REFERENCE TO THE SANTA BARBARA INCIDENT. THAT WOULD INCLUDE APPARENTLY BASED ON THE DEFENSE

 

REPRESENTATIONS, IT WOULD INCLUDE STEVE ROBEL.   ALSO, IF THE COURT WISHES — I AM LEAPING AHEAD TO WHAT I CHARACTERIZE AS UNKNOWN WITNESSES. BUT IT APPEARS FROM THE DEFENSE REPRESENTATIONS THAT CHRIS CARTER ARISES OUT OF THAT INCIDENT.   DOCTOR BARNEY VANVALIN ARISES OUT OF THAT INCIDENT.   DOCTOR GERALD LABINER ARISES OUT OF THAT INCIDENT.   APPARENTLY, MICHAEL LAPERRUQUE ARISES OUT OF, LARGELY OUT OF SANTA BARBARA. SO ON THAT ISSUE, THE PEOPLE WOULD SEEK COMPLETE EXCLUSION AND HAVING ABSOLUTELY NO RELEVANCE TO THE CASE AT HAND.

 

THE COURT:   THANK YOU. FROM THE DEFENSE, PLEASE.

 

MR. CHERNOFF:   JUDGE, WE NEED TO SEPARATE THE TWO ISSUES. FIRST OF ALL, WITH REGARD TO THE PURPOSE FOR THE SEARCH WARRANTS, EXECUTION OF THE SEARCH WARRANTS AND THE PROSECUTION THAT WENT ON IN SANTA BARBARA WHICH WE ARE ALL FULLY FAMILIAR WITH, THAT’S NOT OF INTEREST TO US. THAT IS NOT EVIDENCE THAT WE INTEND TO PRODUCE IN TRIAL. THAT IS NOT INFORMATION THAT WE PLAN TO SHARE WITH THE JURY OR ASK QUESTIONS ABOUT.   THAT’S NOT AS FAR, AS WE ARE CONCERNED, NOT RELEVANT. SO TO THAT EXTENT, I AGREE WITH NOW WITH REGARD, THOUGH, TO HIS PAST DRUG ADDICTIONS, USE, DESIRES, POSSESSIONS, HOW THAT, HOWEVER, WE BELIEVE IS RELEVANT.   AND WE HAVE A DIFFERENCE OF OPINION WITH REGARD TO THAT. WE, I AM GOING, I WILL STATE GENERALLY WHAT I BELIEVE THE PROPOSITIONS ARE SO WE CAN REFER BACK TO THEM LATER AS WE GO THROUGH EACH INDIVIDUAL WITNESSES. BUT GENERALLY, I WOULD LIKE TO SUGGEST TO THE COURT IS THAT WHAT WE HAVE IS A DIFFERENCE OF OPINION BETWEEN THE PARTIES IN THIS REGARD. THE PROSECUTION BELIEVES THAT DOCTOR MURRAY EITHER INJECTED OR AND/OR DRIPPED AN AMOUNT OF PROPROFOL INTO MICHAEL JACKSON WHICH KILLED HIM, AND HE IS, THEREFORE, GUILTY OF THE CRIME OF INVOLUNTARY MANSLAUGHTER.   THE DEFENSE BELIEVES THAT DOCTOR MURRAY DID NOT DO THAT AND THAT IT WAS MICHAEL JACKSON WHO HIMSELF SELF-INGESTED THAT PARTICULAR DRUG, THAT PARTICULAR MEDICINE.

 

WE DISAGREE ON MANY DIFFERENT POINTS IN THE CASE.   BUT GENERALLY SPEAKING, THE DEFENSE BELIEVES THAT THE REASONS FOR MICHAEL JACKSON’S ACTIONS HAD TO DO WITH CERTAIN THINGS THAT WERE GOING ON IN HIS LIFE, HIS DESPERATION FOR THE DRUG PROPOFOL, THE FACT THAT HE WAS ADDICTED TO AND WITHDRAWING FROM DEMEROL DURING THE PERIOD OF TIME THAT HE DIED.   THEREFORE, HIS PAST USE OF DRUGS ARE RELEVANT. NOW RELEVANCE ALSO HAS TO BE MATERIAL, AS YOU KNOW.   I AM NOT DISAGREEING WITH THAT.   HOWEVER, THE MATERIALITY OF HIS PAST USE OF DRUGS IS — RELEVANCE IS ESTABLISHED BY THE FACT THAT EVERY ADDICT WILL TELL YOU THERE IS NO SUCH THING AS A FORMER ADDICT.   START THERE. BUT MATERIALITY IS SET BECAUSE THE PROSECUTION ARGUES AND WILL ALLEGE THAT MICHAEL JACKSON WAS NOT ADDICTED TO DEMEROL IN 2009.   THEY HAD AT LEAST TWO EXPERTS, I THINK MAYBE THREE, WHO ARE GOING TO SAY HE MERELY LIKED DEMEROL. SO IT BECOMES ABSOLUTELY VITAL FOR THE DEFENSE TO ADDRESS THAT ISSUE BY SHOWING THAT IT WASN’T JUST A LIKE.   IT WAS AN ADDICTION.   IF HE POSSESSED PROPOFOL AND DEMEROL IN 2003, IT SHOWS SEVERAL THINGS. AND WE ARE GOING TO REFER TO STEVE ROBEL FIRST, AND WE WILL GO TO THE OTHER PARTIES. IF HE POSSESSED PROPOFOL AND DEMEROL IN 2003 AND 2005 SHOWS A COUPLE THINGS.   FIRST OF ALL, IT SHOWS HE HAS FAMILIARITY WITH BOTH OF THOSE DRUGS WHICH IS IMPORTANT.   IT SHOWS THAT HE OBVIOUSLY USED BOTH OF THOSE DRUGS WHICH IS IMPORTANT. AND SINCE DEMEROL IS AN ADDICTED SUBSTANCE AND WE HAVE WITNESSES WE BELIEVE WHO WILL TESTIFY THAT HE HAD POSSESSED DEMEROL DURING THAT TIME BECAUSE HE WAS ADDICTED, THAT ALSO BECOMES RELEVANT.   THAT ALSO BECOMES IMPORTANT TO THE DEFENSE. I UNDERSTAND THE PROSECUTION’S CONCERN, AND I AM SURE IT’S THE COURT’S CONCERN THAT WE DON’T WANT TO GO TOO FAR BACK IN TIME TO ADDRESS THESE ISSUES.   HOWEVER, IF THERE IS A COURSE OF CONDUCT THAT HAS SPANNED DECADES THAT INVOLVES EXACTLY THE DRUG AND TYPE OF DRUG THAT WE   THINK HE WAS ADDICTED TO IN JUNE OF 2009, THEN IT IS RELEVANT.   AND IT IS MATERIAL UNLESS, OF COURSE, THE PROSECUTION IS WILLING TO STIPULATE OR AGREE THAT HE WAS ADDICTED TO DEMEROL IN 2009. UNDER THOSE CIRCUMSTANCES, I HAVE TO AGREE GOING FURTHER BACK IS NO LONGER MATERIAL.   IT MAY BE RELEVANT BUT NOT MATERIAL.   BUT SINCE WE HAVE THAT BATTLE TO FIGHT AND THAT DISAGREEMENT BETWEEN THE TWO OF US, WE BELIEVE IT’S BOTH RELEVANT AND MATERIAL. AND WHAT STEVE ROBEL, LIEUTENANT STEVE ROBEL WERE TO TESTIFY TO WOULD NOT HAVE ANYTHING TO DO, HE WOULD NOT MENTION ANYTHING WITH REGARD TO MOLESTATION, WOULD NOT MENTION ANYTHING WITH REGARD TO THE TRIAL, NONE OF THAT. WE WOULD BE ASKING HIM ABOUT WHAT HE FOUND AT THE HOUSE. THAT WOULD BE ALL THAT WE WOULD BE INTERESTED IN. NOW I CAN’T SPEAK FOR THE PEOPLE.   I CAN’T SPEAK FOR WHAT THE JURY KNOWS, BUT I CAN SAY THAT WE WILL NEVER ASK QUESTIONS IN THAT REGARD.   IT’S ONLY THE DRUGS WE ARE INTERESTED IN.

 

THE COURT:   MAY I INQUIRE? WHAT IS THE DEFENSE POSITION AS TO THE CAUSE OF DEATH OF MR. JACKSON?   PROPOFOL?   DEMEROL?   WITHDRAWAL FROM DEMEROL?   OTHER DRUGS?   OTHER PSYCHIATRIC PHYSICAL OR PSYCHOLOGICAL ISSUES, PLEASE? BECAUSE I’VE HEARD A LOT OVER THE PAST MONTHS AND YEARS.   AND I STILL DON’T KNOW IF THE DEFENSE HAS A PARTICULAR TAKE OF SOME CAUSE OF DEATH OTHER THAN PROPOFOL.

 

MR. CHERNOFF:   WE THINK HE DIED OF A COMBINATION OF DRUGS IF THAT IS WHAT YOUR QUESTION IS.

 

THE COURT:   IS THE DRUG DEMEROL PART OF THAT?

 

MR. CHERNOFF:   WE THINK THAT IS PART OF IT, YES.

 

THE COURT:   WELL, THINKING — IS THERE FORENSIC TOXICOLOGICAL EVIDENCE?

 

MR. CHERNOFF:   WE BELIEVE THAT AT THE TIME HE DID THE DESPERATE ACT, WE BELIEVE HE DID.   HE WAS WITHDRAWING FROM DEMEROL.   HE WAS ADDICTED TO DEMEROL, AND THAT WAS PART OF THE PROCESS.   JUST LIKE HIS PHYSICAL AND MENTAL, WE BELIEVE HIS PHYSICAL AND MENTAL STATE IS IMPORTANT. AND THAT DECISION THAT HE MADE, ALSO THE FACT THAT HE WAS WITHDRAWING FROM DEMEROL.

 

THE COURT:   I ASKED THE QUESTION OF THE DEFENSE.   I WILL GIVE THE PEOPLE THE OPPORTUNITY TO RESPOND TO THE REPRESENTATION JUST MADE BY THE DEFENSE, MR. WALGREN.

 

MR. WALGREN:   WELL, I DON’T BELIEVE THE DEFENSE DID RESPOND. THE TOXICOLOGY FINDINGS SHOW WITHOUT ANY CONFUSION WHATSOEVER THAT THERE WASN’T EVEN MEPERIDINE OR NORMEPERIDINE IN MICHAEL JACKSON’S BODY.   THAT IS DEMEROL. SO AT THE TIME DEATH, HE DIDN’T EVEN HAVE DEMEROL IN HIS SYSTEM.   AND WE CERTAINLY HAVE NOT BEEN PROVIDED BY ANY DEFENSE DISCOVERY INDICATING THAT DEMEROL CAUSED HIS DEATH OR THE WITHDRAWAL CAUSED HIS DEATH. WHAT WE HAVE BEEN PROVIDED IS THAT IF MICHAEL WAS ADDICTED TO DEMEROL AND HAD BEEN GOING THROUGH WITHDRAWALS, THAT WOULD MAKE SLEEP DIFFICULT.   AND IT WOULD EXACERBATE HIS INSOMNIA.   THAT HAS NOTHING TO DO WITH THE CAUSE OF DEATH, HAS NOTHING TO DO WITH THE FINDINGS OF THE CORONER’S OFFICE.   IT HAS NOTHING TO DO WITH THE TOXICOLOGY FINDINGS. WHAT IT LIKELY IS IS AN ATTEMPT TO SIMPLY CONFUSE THE JURY ABOUT A BUNCH OF ISSUES THAT HAVE NOTHING TO DO WITH THE CAUSE OF DEATH OR THE STANDARD OF CARE CARRIED OUT BY CONRAD MURRAY. DEMEROL — AND UNLESS THIS DISCOVERY HAS NOT BEEN PROVIDED, NO ONE HAS OPINED THAT DEMEROL PLAYED A ROLE IN MICHAEL JACKSON’S DEATH OR CAUSED HIS DEATH.   SO I DON’T SEE HOW THE DEFENSE CAN REPRESENT THAT THAT WAS A SOURCE OF CAUSATION. AS TO GOING BACK TO 2003, I’D ALSO POINT OUT MR. CHERNOFF’S REPRESENTING THAT IT’S RELEVANT THAT PROPOFOL AND DEMEROL WAS FOUND 2003, WE DON’T HAVE DISCOVERY FROM THE DEFENSE EVEN SAYING PROPOFOL AND DEMEROL WAS FOUND IN 2003.   SO I AM CURIOUS WHERE THAT INFORMATION IS COMING FROM BECAUSE IT CERTAINLY HAS NOT BEEN PROVIDED TO US. NOTWITHSTANDING THAT, I THINK A GOOD STARTING POINT FOR A FOCUS ON THIS TRIAL WOULD AT LEAST BE 2009, WOULD AT LEAST BE THE YEAR THAT MICHAEL DIED AT THE HANDS OF CONRAD MURRAY AND NOT GOING BACK TO 2003.   TO SUGGEST THAT THEY ARE GOING TO CALL IN A DETECTIVE RELATED TO THE INVESTIGATION IN SANTA BARBARA AND THAT IT WON’T BE BROUGHT UP WHAT THE CHARGES WERE, I MEAN THEY DON’T NEED TO SAY WHAT THE CHARGES WERE.

BRINGING IN THAT DETECTIVE AND SAYING, YOU KNOW, QUESTIONING HIM ABOUT AN INVESTIGATION THAT TOOK PLACE IN SANTA BARBARA INVOLVING NEVERLAND IN 2003, IT WILL BE SCREAMED ACROSS THE WORLD EXACTLY WHAT THAT INVOLVES.   IT HAS ABSOLUTELY NO RELEVANCE WHATSOEVER TO THIS CASE.   IT’S AN ATTEMPT TO ATTACK THE VICTIM UNFAIRLY. IT’S AN ATTEMPT TO REMIND JURORS OF THAT IRRELEVANT EPISODE. IT’S UNFAIR.   IT’S UNWARRANTED AND HAS NOTHING TO DO WITH ANY EXPERT OPINIONS, CAUSE OF DEATH, WHAT MAY OR MAY NOT HAVE BEEN FOUND IN 2003 IN SANTA BARBARA.

 

MR. CHERNOFF:   WITH REGARD TO SCREAMING ACROSS THE WORLD, I THOUGHT WE ALREADY ESTABLISHED THE JURY WOULDN’T BE WATCHING TV.   THAT IS WHY WE WERE DENIED SEQUESTRATION. BUT DEMEROL — MICHAEL JACKSON COULD NOT SLEEP BECAUSE OF THE DEMEROL.   DOCTOR MURRAY DID NOT KNOW THAT.   BUT ARNOLD KLEIN DID.   MICHAEL JACKSON NEEDED SLEEP BECAUSE HE WAS WITHDRAWING AND ADDICTED, BOTH ADDICTED AND   WITHDRAWING FROM DEMEROL.   THAT’S IMPORTANT TO OUR DEFENSE.   IN FACT, IT’S ABSOLUTELY VITAL. AT THE PERIOD OF TIME THAT HE SELF-INGESTED THE DEMEROL, HE WAS GOING THROUGH THE PAIN OF WITHDRAWAL. IT’S VERY IMPORTANT THERE WAS NO MEPERIDINE BECAUSE THAT SHOWS THE WITHDRAWAL.   ABSOLUTELY, THAT IS IMPORTANT TO OUR DEFENSE. IF THE PROSECUTION DOESN’T THINK DEMEROL HAS ANY AFFECT, THEN THEY, THEY’VE ALREADY, THEY ALREADY HAVE EXPERTS TO SAY THAT HE WASN’T ADDICTED TO IT.   THEY COULD ARGUE THAT.   BUT THAT’S OUR DEFENSE.   THAT’S WHAT WE INTEND TO PRESENT.   IT’S IMPORTANT TO OUR DEFENSE BECAUSE OF IT.   THAT’S WHAT MAKES DEMEROL IMPORTANT.   THAT’S WHAT MAKES ALL THE DRUGS IMPORTANT TO US THAT HE WAS USING DURING THAT PERIOD OF TIME.

 

MR. WALGREN:   MAY I BE HEARD? I THINK WE ARE CONFUSING ISSUES NOW.   I MEAN, WE ARE TALKING ABOUT A DETECTIVE IN SANTA BARBARA IN 2003 FOR WHICH WE HAVE NO DISCOVERY RELATING TO DEMEROL WHATSOEVER. NOW MR. CHERNOFF’S ARGUMENT IS IT’S IRRELEVANT TO DEMEROL.   THAT IS NOT EVEN THE ISSUE THAT WE ARE TALKING ABOUT.   WE ARE TALKING ABOUT STEVE ROBEL AND THE SANTA BARBARA WITNESSES FROM 2003.   THAT IS THE ISSUE, AND THE COURT INDICATED WE WILL GO THROUGH THIS ONE BY ONE. ON THAT ISSUE, ROBEL AND SANTA BARBARA, THE PEOPLE SEEK ABSOLUTE EXCLUSION AND A BAR TO ANY REFERENCE.

 

THE COURT:   IS IT SUBMITTED BY THE PEOPLE?

MR. WALGREN:   SUBMITTED, YOUR HONOR.

THE COURT:   BY THE DEFENSE?

MR. CHERNOFF:   IT IS.

 

THE COURT:   THE PEOPLE’S MOTION IS GRANTED. ANYTHING HAVING TO DO WITH THE YEAR 2003 WITH ANY INCIDENT INVOLVING NEVERLAND, THE SANTA BARBARA PROSECUTION, MEMBERS OF LAW ENFORCEMENT, MEDICAL DOCTORS, MEMBERS OF THE LAY PUBLIC FUNDAMENTALLY IS IRRELEVANT.   IT PROVES ABSOLUTELY NOTHING WITH REGARD TO THE YEAR 2009. THIS INCLUDES BUT IS NOT LIMITED TO INVESTIGATOR ROBEL, CHRIS CARTER, DOCTORS LABINER, VANVALIN, AND LAPERRUQUE.   MORE IMPORTANTLY, EVEN ASSUMING BARE RELEVANCE AS MR. CHERNOFF HAS INDICATED IN TERMS OF A HISTORY, AS FAR AS I AM CONCERNED, DISCUSSIONS OF THESE SUBJECT MATTERS ARE SUFFICIENTLY CONVOLUTED, DISTRACTING, AND DETRACTING AS TO SUBSTANTIALLY OUTWEIGH ANY PROBATIVE VALUE WHATSOEVER. THEY MISDIRECT.   THEY MISLEAD BOTH IN TERMS OF TIMING AND IN TERMS OF CIRCUMSTANCES SO AS TO BE MORE PREJUDICIAL, TIME CONSUMING, AND DISTRACTING THAN RELEVANT. SO UNDER EVIDENCE CODE SECTION 350 AND 352, THE PEOPLE’S MOTION TO COMPLETELY EXCLUDE ANY REFERENCE TO THE YEAR 2003 AND SANTA BARBARA, NEVERLAND, INTERACTION WITH MEDICAL DOCTORS IS GRANTED.   THAT IS NO-GO TERRITORY FOR PURPOSES OF THIS CRIMINAL TRIAL.   NEXT.

 

MR. CHERNOFF:   I WANT TO MAKE SURE I GOT THIS. CHRIS CARTER, LABINER, VANVALIN, AND LAPERRUQUE.

 

THE COURT:   WELL, I DON’T KNOW EXACTLY EVERYONE.   I KNOW THAT DOCTOR MICHAEL LAPERRUQUE.

 

MR. CHERNOFF:   HE IS A, HE WAS A SECURITY.

THE COURT:   THAT’S RIGHT.

MR. CHERNOFF:   SO HE IS ONE OF THEM.   AND DOCTOR VANVALIN.

THE COURT:   BARNEY VANVALIN.

MR. CHERNOFF:   AND CHRIS CARTER IS WHAT YOU MENTIONED.

 

THE COURT:   LABINER AND CARTER AND INVESTIGATOR LIEUTENANT STEVE ROBEL.   NOW THOSE ARE THE INDIVIDUALS WHO WERE MENTIONED.   WHETHER INDIVIDUALS ARE MENTIONED BY NAME OR REFERENCED OR UNKNOWN AT THIS JUNCTURE, ABSENT SOME FURTHER OFFER OF PROOF, THAT ENTIRE SUBJECT AREA IS IRRELEVANT AND PRECLUDED UNDER EVIDENCE CODE SECTION 352. THANK YOU. SUBDIVISION 3, THE PEOPLE SEEK EXCLUSION AND/OR LIMITATION OF TESTIMONY FROM PRIOR ALLEGED HEALTH CARE PROVIDERS ABSENT AN OFFER OF PROOF.   AND THE FIRST INDIVIDUAL MENTIONED IS ALLEN METZGER, DOCTOR METZGER. MR. WALGREN.

 

MR. WALGREN:   THANK YOU, YOUR HONOR.

THE COURT:   YOU ARE WELCOMED.

 

MR. WALGREN:   THE — I DON’T KNOW THAT THE DEFENSE OFFER OF PROOF IS, HAS MADE IT ANY CLEARER TO THE PEOPLE WHAT THEIR INTENT IS.   CERTAINLY, THEY OFFER, ACCORDING TO THEIR OFFER OF PROOF IN THE MOTION, THEY OFFER AN INCIDENT ON APRIL 18, 2009. AGAIN, AT LEAST WE ARE IN THE YEAR THAT MICHAEL DIED.   AND THEY OFFER THE FACT THAT ACCORDING TO THEM THAT MR. JACKSON ASKED DOCTOR METZGER FOR AN INTRAVENOUS SLEEP MEDICINE.   WHAT THEY DON’T PUT IN THERE IS THAT DOCTOR METZGER EVIDENTLY HAD THE INTEGRITY TO NOT PROVIDE WHATEVER WAS BEING ASKED. BUT IN ANY EVENT, I AM SIMPLY TRYING TO ASCERTAIN HOW THIS RELATES TO AGAIN THE CAUSE OF DEATH OR THE INCIDENTS THAT OCCURRED.   THE PEOPLE CERTAINLY AGREE THAT IT’S IN THE MORE RELEVANT TIME PERIOD.   WE ARE JUST TRYING TO ASCERTAIN BEYOND THIS APRIL 18 INCIDENT WHERE MICHAEL JACKSON ALLEGEDLY ASKED FOR SLEEP MEDICINE, AND DOCTOR METZGER DECLINED, IF THERE IS ANY OTHER OFFER OF PROOF FROM THE DEFENSE AS TO THE RELEVANCE OF THIS WITNESS.

 

THE COURT:   MR. CHERNOFF —

 

MR. CHERNOFF:   OUR OFFER OF PROOF STANDS —

 

THE COURT:   SORRY. THE INDICATION WAS THERE WAS A TELEPHONE CALL IN FEBRUARY IN 2009 IN ADDITION TO ONE TIME IN 2008. AND ACTUALLY — MR. JACKSON WAS SEEN BY DOCTOR METZGER IN APRIL WITHOUT A PHYSICAL EXAM BUT SOME OBSERVATIONS THAT MR. JACKSON APPEARED TO BE TRIM, FIT, AND LUCID.   AND MR.    JACKSON INQUIRED ABOUT SLEEP MEDICATIONS, AND DOCTOR METZGER NOTED, WILL PRESCRIBE WITH TRAZADONE OR KLONOPIN.

 

MR. CHERNOFF:   WHERE ARE YOU READING THAT FROM?

 

THE COURT:   I AM READING IT FROM THE PEOPLE’S OFFER, AND I AM TAKING IT INTO ACCOUNT THE DEFENSE RESPONSE.

 

MR. CHERNOFF:   WHERE IS THE PEOPLE’S OFFER?

THE COURT:   THAT IS PAGE 3 STARTING AT LINES 15.

MR. CHERNOFF:   I GOT YOU.

 

THE COURT:   THROUGH 22. SO THE OFFER, THIS DEMONSTRATES MR. JACKSON’S DESIRE ABOUT SLEEP MEDICATIONS?

 

MR. CHERNOFF:   IT DOES.

THE COURT:   DID DOCTOR METZGER EVER PRESCRIBE?

 

MR. CHERNOFF:   HE DID NOT. IT IS ANTICIPATED THE PEOPLE WILL ARGUE – I AM READING FROM OUR, WHAT YOU HAVE IN FRONT OF YOU, PAGE 3. IT IS ANTICIPATED THE PEOPLE WILL ARGUE THAT DOCTOR MURRAY AGREED TO PROVIDE MICHAEL JACKSON PROPOFOL DURING THE TIME PERIOD THIS REQUEST WAS MADE OF DOCTOR METZGER.   WHEN, AND I AM ITALICIZING THAT ORALLY, DOCTOR MURRAY BEGAN PROVIDING PROPOFOL TO MICHAEL JACKSON WILL BE A MAJOR SOURCE OF DISAGREEMENT BETWEEN THE PARTIES. SO IT’S IMPORTANT TO OUR DEFENSE TO ESTABLISH AT LEAST THAT.

 

THE COURT:   WITH WHAT?

 

MR. CHERNOFF:   JUDGE, WHEN HE GAVE, WHEN THE PEOPLE SAY THAT DOCTOR MURRAY PROVIDED MICHAEL JACKSON PROPOFOL, IF HE WAS GETTING PROPOFOL IN APRIL, ON APRIL 18, IT STANDS TO REASON HE WOULDN’T NEED TO ASK SOMEONE ELSE TO DO IT.   AND THAT WOULD BE AN ARGUMENT THAT THE DEFENSE WOULD MAKE.   SO IT’S IMPORTANT THAT DOCTOR METZGER ESTABLISH THAT.

 

THE COURT:   MR. WALGREN.

 

MR. WALGREN:   I DON’T KNOW THAT THE TIME PERIOD THAT DOCTOR MURRAY WAS PROVIDING PROPOFOL WOULD BE A MAJOR SOURCE OF DISAGREEMENT.   MR. CHERNOFF WAS PRESENT AT THE INTERVIEW WHEN DOCTOR MURRAY SAYS ON AUDIOTAPE THAT HE WAS GIVING IT TO HIM FOR TWO MONTHS NEARLY EVERY SINGLE NIGHT. I DON’T KNOW IF THERE IS A MAJOR DISAGREEMENT. BUT IS THE DEFENSE OFFER OF PROOF THEN THAT THEY SIMPLY WANT TO DELVE INTO THIS APRIL 18 REQUEST?

 

MR. CHERNOFF:   I WAS ALSO PRESENT DURING THE INTERVIEW WHEN DOCTOR MURRAY SAID HE GAVE 25 MILLIGRAMS. BUT I AM ASSUMING THAT THE PEOPLE WILL DISAGREE WITH THAT IN THEIR CASE.

 

MR. WALGREN:   SO THEY ARE IMPEACHING THEIR OWN CLIENT?   THEY WANT TO CALL METZGER TO IMPEACH THEIR OWN CLIENT.

 

THE COURT:   WELL, THAT MAY OR MAY NOT BE THE CASE. DOCTOR METZGER CAN TESTIFY BASED UPON THE OFFER.   IT’S RELEVANT.   IT MEETS THE FOUNDATIONAL REQUIREMENTS FOR RELEVANCE.   IT MAY BE TWO-SIDED.   BUT IT CERTAINLY IT’S NOT SUBSTANTIALLY MORE PREJUDICIAL THAN PROBATIVE UNDER EVIDENCE CODE SECTION 352. SO I WILL PERMIT DOCTOR METZGER TO TESTIFY ASSUMING THAT’S THE EXTENT OF IT.   I DON’T KNOW WHAT ELSE MAY BE OUT THERE.   SO DOCTOR METZGER CAN TESTIFY. NEXT, DOCTOR ADAMS.

 

MR. WALGREN:   THANK YOU, YOUR HONOR. THERE ARE A COUPLE VERY RELEVANT FACTS THAT THE DEFENSE LEFT OUT IN THEIR OFFER OF PROOF AS IT RELATES TO DOCTOR ADAMS.   AND I DIRECT THE COURT SPECIFICALLY TO PAGE 4, LINES 10 AND 11, WHEN THE DEFENSE PUTS FORTH THAT QUOTE, YES, LINE 11, “MR. JACKSON WAS TAKING PROPOFOL AT LEAST SINCE JULY 2008 TO HELP HIM SLEEP. WHAT THEY DON’T PUT IN THERE IS THAT ACCORDING TO THE RECORDS WE HAVE AND THE SAME RECORDS THE DEFENSE HAS, THE RECORDS REFLECT THAT DOCTOR ADAMS IS A ANESTHESIOLOGIST WHO GAVE PROPOFOL AS PART OF DENTAL PROCEDURES AT LEAST FOUR DIFFERENT TIMES, INCLUDING IMPLANTS, ROOT CANALS, THINGS OF THAT NATURE, AND THAT THESE WERE ALWAYS ADMINISTERED IN A MEDICAL OFFICE NOT IN A BEDROOM. SO THE FOUR PROCEDURES ARE REFERENCED. ALSO, ALL OCCUR IN 2008, EACH OF THOSE 4 DENTAL PROCEDURES. THE ONE ADDITIONAL INCIDENT ACTUALLY COMES FROM DOCTOR MURRAY WITH HIS INTERVIEW WITH THE POLICE WHERE HE INDICATES THAT IN MARCH OR APRIL OF ’09, HE ALLOWED, KNOWINGLY ALLOWED HIS OFFICE TO BE USED TO ADMINISTER PROPOFOL TO MICHAEL JACKSON. BEYOND THAT COMING FROM DOCTOR MURRAY, ALL THE INCIDENTS ARRIVE OUT OF 2008 AND WERE PART OF DENTAL PROCEDURES IN A MEDICAL FACILITY.   AND THE PEOPLE JUST DON’T SEE THE RELEVANCE OF, AS TO THE PURPOSE OF CALLING DOCTOR ADAMS IN THIS CASE RELATED TO THE CAREGIVER EVEN TO MICHAEL IN THIS CASE.

 

THE COURT:   MR. CHERNOFF.

 

MR. CHERNOFF:   THE OFFER OF PROOF SPEAKS FOR ITSELF.   YOU ALSO PREVIOUSLY MADE A DETERMINATION ABOUT WHETHER OR NOT HIS PARTICULAR TESTIMONY WOULD BE RELEVANT. AND REGARD TO THE —

 

THE COURT:   WELL, I ALLOWED A SUBPOENA TO BE ISSUED FOR AN OUT-OF-STATE WITNESS. IS THAT WHAT YOU MEAN?

 

MR. CHERNOFF:   THAT’S TRUE, BASED ON THE AFFIDAVIT AND BASED ON ESSENTIALLY THE FACTS THAT HAVE BEEN STATED IN THIS OFFER OF PROOF. I UNDERSTAND THAT MAYBE MR. WALGREN’S DISCUSSION OF DOCTOR ADAMS’ CARE WAS DESIGNED FOR SOMETHING OTHER THAN JUST ARGUING RELEVANCY.   BUT I WILL POINT OUT THAT WE HAVE ACCESS TO THE DENTIST RECORDS, MEDICAL RECORDS WHICH WE BELIEVE CLEARLY CONTRADICTS WHAT DOCTOR ADAMS TOLD THE POLICE. WE ALSO, AS THE PROSECUTION KNOWS, WE HAVE PAYMENT MADE TO DOCTOR, PROOF OF PAYMENT MADE TO DOCTOR ADAMS FOR THE TIME THAT HE PUT MICHAEL JACKSON TO SLEEP THAT HE DENIES DOING TO THE POLICE.   HIS ACTIVITIES ARE RELEVANT.   IT SHOWS EXACTLY WHAT WE HAVE SUGGESTED IN OUR OFFER OF PROOF AND AS IN 2010 WHEN WE MADE, REQUESTED A SUBPOENA.   AND WE STILL NEED HIM FOR THE DEFENSE.

 

THE COURT:   WHEN WAS THE LAST TIME DOCTOR ADAMS INTERACTED WITH MR. JACKSON?

 

MR. CHERNOFF:   AS WE SAID IN OUR OFFER OF PROOF, MARCH OR APRIL OF 2009 IS WHEN HE SAW HIM PERSONALLY.

 

THE COURT:   AND AT THAT TIME ACCORDING TO YOUR OFFER OF PROOF, WAS MR. JACKSON ADMINISTERED PROPOFOL BY EITHER DOCTOR ADAMS OR DOCTOR MURRAY IN THE PRESENCE OF DOCTOR ADAMS?

 

MR. CHERNOFF:   NO.   DOCTOR MURRAY WAS NOT PRESENT. DOCTOR ADAMS PUT MICHAEL JACKSON TO SLEEP IN DOCTOR MURRAY’S OFFICE.   DOCTOR MURRAY ALLOWED DOCTOR ADAMS TO USE HIS OFFICE.   DOCTOR ADAMS PUT MICHAEL JACKSON TO SLEEP THERE.   DOCTOR MURRAY DID NOT KNOW WHAT THE PROCESS WAS. HE ONLY KNEW THAT DOCTOR ADAMS AND MICHAEL JACKSON NEEDED TO CONNECT AT THAT TIME.

 

MR. WALGREN:   MAY I BE HEARD, YOUR HONOR?

 

THE COURT:   SURE.

 

MR. WALGREN:   AND THIS MARCH, WHAT THEY CHARACTERIZE AS MARCH OR APRIL OF 2009 INCIDENT, THIS COMES FROM DOCTOR MURRAY IN HIS INTERVIEW.   THIS WILL BE PLAYED FOR THE JURY.   IT’S PART OF THE AUDIOTAPED INTERVIEW.   THE JURY WILL HEAR ABOUT DOCTOR MURRAY’S ALLEGATION OR CLAIM IN THAT INTERVIEW. SO BEYOND THAT, ALL THE OTHER INCIDENTS RELATE TO 2008 DENTAL PROCEDURES AND SIMPLY IS AN ATTEMPT BY THE DEFENSE TO GET DOCTOR ADAMS ON THE STAND AND THEN ATTACK DOCTOR ADAMS TO SOMEHOW, I DON’T KNOW, CREATE ANOTHER TRIAL AS IF DOCTOR ADAMS IS A DEFENDANT WHEN HE CLEARLY IS NOT. BUT THE ISSUES DON’T SEEM AT ALL RELEVANT. IT SEEMS LIKE IT WILL BE A SIDE SHOW.   THE DEFENSE WILL APPARENTLY BE CALLING DOCTOR ADAMS SO THAT THEY, THEREFORE, CAN ATTACK DOCTOR ADAMS BECAUSE THEY DON’T THINK HE IS TRUTHFUL. WHAT THAT HAS TO DO AGAIN WITH THE STANDARD OF CARE OR WHAT DOCTOR MURRAY DID AND THE CAUSE OF DEATH TO MICHAEL JACKSON, IT’S THE PEOPLE’S POSITION THAT DOCTOR ADAMS IS COMPLETELY IRRELEVANT.   IF THE ARGUMENT FOR RELEVANCE IS THIS APRIL, MARCH OR APRIL 2009 INCIDENT, WELL, CLEARLY THAT IS GOING TO BE PLAYED TO THE JURY.   AND THEY ARE GOING TO HEAR THAT FROM MURRAY’S OWN MOUTH WHEN WE PLAY HIS STATEMENT. THE OTHERS ARE FROM 2008.   AND TO CALL DOCTOR ADAMS IN AND JUST CREATE THIS CIRCUS-LIKE EVENT, I THINK IT’S ABSOLUTELY IRRELEVANT AND HAS NOTHING DO WITH THE ISSUES AT HAND.   SO WE’D ASK FOR COMPLETE EXCLUSION OF DOCTOR ADAMS.

 

MR. CHERNOFF:   AS WE SAID IN OUR OFFER OF PROOF 9 THROUGH 13, IT SHOWS AMONG OTHER THINGS THAT OTHER PHYSICIANS ADMINISTERED PROPOFOL TO MR. JACKSON, THAT HE WAS FAMILIAR WITH THE USE OF PROPOFOL FOR SLEEP. MR. JACKSON WAS TAKING PROPOFOL SINCE JULY 2008 TO HELP HIM SLEEP.   HE HAD A DESIRE FOR PROPOFOL.   HE REQUESTED PROPOFOL ALL BEFORE HE ENLISTED THE AID OF DOCTOR MURRAY.   AND FURTHER THAT HE HAD THE PHYSICAL CAPACITY AND TOLERANCE FOR PROPOFOL. ALSO, HIS FAMILIARITY WAS TO THE EXTENT THAT DOCTOR ADAMS WILL TESTIFY HE HAD A NICKNAME FOR PROPOFOL. HE CALLED IT HIS MILK.   HE HAD A NICKNAME FOR LIDOCAINE WHICH HE KNEW WAS USED WITH THE PROPOFOL.   HE NICKNAMED THAT ANTI-BURN.   HIS FAMILIARITY IS IMPORTANT SINCE OUR DEFENSE, AS YOU NOW KNOW, IS THAT HE SELF-INGESTED.

 

THE COURT:   WHEN DOCTOR MURRAY WAS INTERVIEWED BY L.A.P.D, DID HE MAKE REFERENCE TO THE TERM MILK AS BEING USED BY MR. JACKSON?

 

MR. CHERNOFF:   YES.

 

THE COURT:   I AM GOING TO PERMIT DOCTOR ADAMS TO TESTIFY WITHIN THE PARAMETERS OF THE DEFENSE OFFER OF PROOF.   I DO NOT SEE IT AS A QUOTE “CIRCUS” END QUOTE.   I SEE THE OFFER OF PROOF AS DEMONSTRATING RELEVANCE. AND UNDER EVIDENCE CODE SECTION 352, THAT EVIDENCE DOES NOT SUBSTANTIALLY OUTWEIGH ANY PROBATIVE VALUE.   SO I AM GOING TO PERMIT IT. NEXT.   CHERYLIN LEE, IS IT?   MR. WALGREN.

 

MR. WALGREN:   YES. AND CAN I ASSUME FROM THE COURT’S RULING REGARDING DOCTOR METZGER AND DOCTOR ADAMS THAT THE COURT’S INCLINED TO ALLOW THE DEFENSE TO CALL DOCTOR LEE?

 

THE COURT:   NO, NO.   I DON’T KNOW ABOUT INCLINATIONS.   I’M HAPPY TO HEAR YOUR POSITION AS TO WHETHER DOCTOR LEE IS IN THE SAME OR DIFFERENT POSTURE THAN DOCTORS METZGER AND ADAMS.

 

MR. WALGREN:   WELL, I GUESS ARGUABLY FROM THE DEFENSE OFFER OF PROOF SHE INDICATES THAT MICHAEL JACKSON IN APRIL HAD INQUIRED OF DIPRIVAN.   SHE WARNED HIM OF THE DANGERS.   SHE WAS NOT WILLING TO PURSUE IT FURTHER WITH HIM. SO I GUESS BASED ON THE REASONING THAT THE COURT ALLOWED DOCTOR METZGER AND/OR ADAMS, I ASSUME THE COURT WOULD HAVE THE SAME RULING ON THAT ISSUE.   AND I WOULD SUBMIT.

 

THE COURT:   IS THAT THE SAME DEFENSE POSITION?

MR. CHERNOFF:   IT IS, JUDGE.

 

THE COURT:   IT’S THE SAME RULING. LET ME ASK YOU.   SO DOCTOR LEE’S TESTIMONY IS RELEVANT UNDER EVIDENCE CODE SECTION 350.   IT’S NOT SUBSTANTIALLY MORE PREJUDICIAL THAN PROBATIVE UNDER EVIDENCE CODE SECTION 352. WITH REGARD TO DOCTORS METZGER, ADAMS, AND LEE, DID ANY OF THOSE PHYSICIANS OR NURSES ADMINISTER TO MR. JACKSON PROPOFOL IN A SETTING OTHER THAN A CLINIC OR HOSPITAL FACILITY?

 

MR. WALGREN:   NO, YOUR HONOR.

 

MR. CHERNOFF:   WE BELIEVE THEY MIGHT HAVE. WHAT RELEVANCE WOULD THAT BE FOR US TO CALL HIM, I GUESS, IS MY QUESTION?

 

THE COURT:   I ACTUALLY WASN’T ASKING THE DEFENSE. I WAS ASKING THE PEOPLE THE QUESTION.   BUT SINCE YOU VOLUNTEERED, I WOULD LIKE YOU TO EXPLAIN THAT.

 

MR. CHERNOFF:   WE ARE NOT GOING TO BE ASKING THAT, JUDGE.   THAT IS WHY I AM ASKING — WE ARE NOT GOING TO —

 

THE COURT:   I KNOW YOU MIGHT NOT BE.

MR. CHERNOFF:   APPARENTLY, THE PEOPLE ARE NOT EITHER.

THE COURT:   I DON’T KNOW THAT.

 

MR. CHERNOFF:   I AM JUST CURIOUS IF THAT HAS ANYTHING TO DO WITH THE RELEVANCE IN THIS CASE.

 

THE COURT:   IT DOES.

MR. CHERNOFF:   OH, I SEE.

 

THE COURT:   AND IT HAS TO DO WITH THE 352 ANALYSIS. BUT SINCE I HAVE, IN FACT, AGREED WITH THE DEFENSE POSTURE, WE WILL MOVE ON IN VIEW OF THE REPRESENTATIONS THAT HAVE BEEN MADE. SO THE NEXT WITNESS IS ARNOLD KLEIN, IS IT? DOCTOR KLEIN, MR. WALGREN.

 

MR. WALGREN:   YES.   THANK YOU, YOUR HONOR. YOUR HONOR, AS IT RELATES TO ARNOLD KLEIN, YOUR HONOR, THE PEOPLE DO OBJECT.   AND THE REASONING WE OBJECT IS AS FOLLOWS. WE HAVE THE MEDICAL RECORDS PROVIDED.  THE   HAVE BEEN PROVIDED TO BOTH THE DEFENSE AND THE PEOPLE. THIS APPARENTLY BY THE REPRESENTATIONS TODAY IS VERY IMPORTANT EVIDENCE TO THEM BECAUSE IT DOCUMENTS THE ADMINISTRATION OF DEMEROL BY DOCTOR KLEIN TO MICHAEL JACKSON WHEN HE WAS HAVING HIS DERMATOLOGY WORK DONE. TO CALL DOCTOR KLEIN HIMSELF, THE PEOPLE FEEL IS AN IMPROPER, ESSENTIALLY A BACKDOOR WAY OF TRYING TO GET IN THIRD PARTY CULPABILITY EVIDENCE.   THEY WANT TO CALL DOCTOR KLEIN. AND ALTHOUGH THE MEDICAL EVIDENCE AND THE SCIENCE DOES NOT SUPPORT IT, THEY WANT TO SHIFT BLAME TO DOCTOR KLEIN SO THAT THE JURY WILL FOCUS ON THE ACTIVITIES OF DOCTOR KLEIN RATHER THAN THE ACTIVITIES OF CONRAD MURRAY. IF THEIR REPRESENTATIONS ARE ACCURATE THAT THEIR PURPOSE IN GETTING INTO THIS EVIDENCE IS TO PROVE THAT DEMEROL WAS ADMINISTERED, AS THE RECORDS REFLECT, THE PEOPLE DON’T DISPUTE THAT.   THE PEOPLE HAVE THE SAME RECORDS THAT THE DEFENSE HAS.   THE PEOPLE DON’T DISPUTE WHAT THE RECORDS SHOW AND THE DATES AND AMOUNTS OF DEMEROL THAT WERE GIVEN. SO THAT NOT BEING IN DISPUTE, THE PEOPLE SEE NO OTHER REASON FOR THE DEFENSE TO CALL DOCTOR KLEIN OTHER   THAN TO MAKE IMPROPER THIRD PARTY CULPABILITY ARGUMENTS WHICH THE COURT KNOWS AT LEAST AT THIS STAGE ARE ABSOLUTELY UNSUPPORTED BY ANY FILINGS OF THE DEFENSE OR ANY MOTIONS OR ABSOLUTELY UNSUPPORTED BY THE CASE LAW OR THE FACTS OF THIS CASE.

 

SO WE WOULD SEEK TO EXCLUDE OUTRIGHT DOCTOR KLEIN.   WE DON’T HAVE OBJECTION THAT WE ASSUME THEIR EXPERTS WILL BE RELYING ON THE MEDICAL RECORDS AS A BASIS OF THEIR OPINION.   AND WE EXPECT THAT TO TAKE PLACE, AND WE DON’T OBJECT TO THAT.   THAT WOULD CERTAINLY ESTABLISH WHAT THE DEFENSE CLAIMS THEY WANT TO ESTABLISH. BUT BEYOND THAT, WE THINK IT’S IMPROPER THIRD PARTY CULPABILITY AND WOULD SEEK TO EXCLUDE IT OUTRIGHT.

 

THE COURT:   MR. CHERNOFF.

 

MR. CHERNOFF:   WELL, THERE ARE THINGS THAT THE MEDICAL RECORDS DON’T TELL US LIKE WHY DID HE CHOOSE, WHICH IS ESSENTIALLY AN ANTIQUATED NOW BUT EXTREMELY POWERFUL PAIN KILLER FOR REMOVAL OF ACNE PROBLEMS. BUT HERE’S WHAT I WOULD SAY, SUGGEST.   WE DON’T EVEN KNOW IF DOCTOR KLEIN IS EVEN ACTUALLY, WHETHER HIS ATTORNEY WILL ALLOW HIM TO TESTIFY.   WE WILL CALL HIM. BUT WE DON’T KNOW WHETHER OR NOT THAT’S GOING TO BE PROBLEMATIC ANYWAY BASED ON WHAT THE PEOPLE HAVE JUST SUGGESTED. WE MAY BE ABLE TO COME TO SOME STIPULATION REGARDING THAT.   WE JUST TALKED THIS OVER WITH HIS LAWYER ON ARNOLD KLEIN.   BUT I WILL SAY THAT OTHER THAN THAT, I BELIEVE THAT HIS TESTIMONY IS RELEVANT AND INDEPENDENT OF THE MEDICAL RECORDS THEMSELVES.   AND WE ARE NOT INTERESTED IN SHIFTING BLAME.   WE ARE INTERESTED IN MICHAEL JACKSON’S ADDICTION TO THIS PARTICULAR DRUG, AND IT’S INFORMATION THAT HE WOULD KNOW.   THAT IS MY RESPONSE TO THAT.

 

THE COURT:   SUBMITTED?

MR. CHERNOFF:   SUBMITTED.

THE COURT:   BY THE PEOPLE?

MR. WALGREN:   YES, YOUR HONOR.

 

THE COURT:   THE COURT GRANTS THE PEOPLE’S MOTION AND WILL EXCLUDE ANY TESTIMONY FROM DOCTOR KLEIN.   I DO NOT THINK IT IS RELEVANT IN THE OVERALL SCHEME OF THINGS IN VIEW OF THE PEOPLE’S ACKNOWLEDGEMENT THAT THEY WILL NOT BE OBJECTING TO THE MEDICAL RECORDS THEMSELVES. MORE IMPORTANTLY, I THINK THAT THE CALLING OF DOCTOR KLEIN DOES RAISE THE ISSUE AND SPECTER OF SO-CALLED THIRD PARTY CULPABILITY WHERE ONE IS LED DOWN A PATH OF SOMEHOW ASCRIBING TO DOCTOR KLEIN SOME SORT OF CRIMINAL CULPABILITY FOR THE DEATH OF MR. JACKSON. I DO NOT BELIEVE THAT THE DEFENSE HAS MADE A SUFFICIENT SHOWING UNDER PEOPLE VERSUS HALL AND ITS PROGENY FOR THE RELEVANCE OF SUCH TESTIMONY IN VIEW OF THE NONOBJECTION TO MEDICAL RECORDS. SO FIRST OF ALL, I FIND THAT CALLING DOCTOR KLEIN IS IRRELEVANT UNDER THE CIRCUMSTANCES.   AND MORE IMPORTANTLY, UNDER EVIDENCE CODE SECTION 352, THE DISTRACTION AND DIVERGENCE OF THE ISSUES SUBSTANTIALLY OUTWEIGH ANY PROBATIVE VALUE. SO THE COURT IS GRANTING THAT MOTION TO EXCLUDE THE PROFFERED TESTIMONY OF DOCTOR KLEIN IN VIEW OF THE FACT THAT THERE WILL BE NO ISSUE AS TO MEDICAL RECORDS. IF THERE IS SOME OTHER STIPULATION, THE COURT WILL BE HAPPY TO CONSIDER THAT IF IT ARISES.

 

MR. CHERNOFF:   THE NEXT TWO WITNESSES, ELLEN BRUNN AND JASON PFEIFFER, WORK FOR ARNOLD KLEIN.   ARNOLD KLEIN IS — THEY CAN TESTIFY TO THE METHODOLOGY AND PRACTICE IN GIVING MICHAEL JACKSON DEMEROL.   THERE IS NO THIRD PARTY CULPABILITY WITH REGARD TO THESE TWO PARTICULAR INDIVIDUALS. FURTHERMORE, JASON PFEIFFER PROVIDES INFORMATION ABOUT MICHAEL JACKSON IN JUNE, TWO WEEKS BEFORE HIS DEATH, CALLING AND ASKING FOR AN ANESTHESIOLOGIST SPECIFICALLY TO PROVIDE PROPOFOL WHICH BY THE WAY IS ONE OF THE QUESTIONS WE WOULD BE ASKING DOCTOR ARNOLD KLEIN IF WE WERE PERMITTED TO CALL HIM AS A WITNESS.

 

THE COURT:   OKAY.   WE WERE WITH THE PEOPLE SINCE IT’S THEIR MOTION.   BUT AS TO ELLEN BRUNN AND JASON PFEIFFER, I DON’T KNOW IF THE PEOPLE FEEL THEY ARE EXACTLY IN THE SAME POSITION OR IN DIFFERENT POSITIONS.   I WILL HEAR THE PEOPLE’S POSITION.

 

MR. WALGREN:   THEY ARE BASICALLY EXACTLY THE SAME, YOUR HONOR.   TO SAY THEY DON’T RAISE THIRD PARTY CULPABILITY BECAUSE IT DOESN’T INCULPATE THEMSELVES, THE ISSUE IS IT RAISES THIRD PARTY CULPABILITY AS TO DOCTOR KLEIN.   IT’S THE SAME EXACT ISSUE.   WHETHER ONE OF THEM IS DOING SOMETHING AT HIS DIRECTION OR WORKS IN HIS OFFICE, ELLEN BRUNN SHOULD BE EXCLUDED FOR THE SAME EXACT REASON. THEIR OFFER OF PROOF IS THAT SHE, HER INITIALS ARE REFLECTED IN THE MEDICAL RECORDS.   WE ARE NOT DISPUTING THE MEDICAL RECORDS.   SO IT HAS NO RELEVANCE, AND IT RAISES THE SAME THIRD PARTY CULPABILITY ISSUES. JASON PFEIFFER IS NOT EVEN A MEDICAL PERSONNEL.   HE WAS A PARTNER OF SOME SORT TO DOCTOR KLEIN. HE IS ALSO INVOLVED IN COMPLEX CIVIL LITIGATION BACK AND FORTH WITH DOCTOR KLEIN.   IT HAS NO RELEVANCE TO THE DEMEROL THAT WAS BEING ADMINISTERED.   IT HAS NO RELEVANCE TO ANYTHING. THIS TRULY WOULD CREATE A SIDESHOW AND FOR THE SAME EXACT REASONS AND THEN SOME.   THE PEOPLE SEEK EXCLUSION OF BOTH ELLEN BRUNN AND JASON PFEIFFER BASED ON THE SAME REASONING THAT WE PUT FORTH AS TO DOCTOR KLEIN.

 

THE COURT:   IS IT SUBMITTED BY THE PEOPLE?

MR. WALGREN:   SUBMITTED, YOUR HONOR.

THE COURT:   WOULD THE DEFENSE LIKE TO BE HEARD FURTHER?

 

MR. CHERNOFF:   YES.   IF YOU EXCLUDE ALL OF THESE WITNESSES, YOU WILL PREVENT, YOU WILL ABSOLUTELY PREVENT THE DEFENSE FROM EVER SHOWING THE JURY HOW A DECISION WAS MADE TO GIVE DEMEROL, WHY THERE WAS VARYING SHOTS GIVEN IN DEMEROL, WHY ON SOME DAYS 350 MILLIGRAMS WERE GIVEN. OTHER DAYS, A HUNDRED MILLIGRAMS WERE GIVEN.   WHO REQUESTED THAT DEMEROL?   WAS DOCTOR KLEIN INVOLVED IN THAT REQUEST?   OR WAS IT MICHAEL JACKSON WHO MADE THAT REQUEST? AND FURTHER, WITH REGARD TO JASON PFEIFFER, YOU WILL PREVENT US FROM EVER ESTABLISHING THAT DESPITE THE FACT THAT THE PROSECUTION WILL ALLEGE THAT DOCTOR MURRAY WAS GIVING MICHAEL JACKSON ALL THE PROPOFOL HE WANTED, WHY IS IT THAT TWO WEEKS PRIOR TO HIS DEATH, HE WAS LOOKING FOR ANOTHER SOURCE? SO I WOULD ASK HIS HONOR TO ALLOW US AT THIS JUNCTURE SINCE YOU HAVE ALREADY DENIED US DOCTOR KLEIN TO ALLOW US THESE TWO WITNESSES TO ATTEMPT TO ESTABLISH THOSE POINTS.

 

THE COURT:   THANK YOU. IS IT SUBMITTED BY THE DEFENSE?

MR. CHERNOFF:   IT’S SUBMITTED, JUDGE.

 

THE COURT:   THANK YOU. SAME RULING.   I DO NOT BELIEVE THAT THAT TESTIMONY IS RELEVANT TO THE CRITICAL ISSUES IN THIS CASE. THIRD PARTY CULPABILITY NEED NOT BE RAISED ONLY WITH REGARD TO A PARTICULAR INDIVIDUAL.   IT CAN BE, ARISE AS TO OTHERS. I DO NOT BELIEVE THAT THE TESTIMONY OF MS. BRUNN OR MR. PFEIFFER IS RELEVANT TO THE ISSUES IN THIS CASE.   AND MOST IMPORTANTLY, UNDER EVIDENCE CODE SECTION 352, THE VERY REAL POTENTIAL AND REALITY OF DISTRACTION INTO COMPLETELY DIVERGENT ISSUES WITH ALL OF THE MISLEADING FACTORS THAT THAT MAY ENTAIL SUBSTANTIALLY OUTWEIGHS THE PROBATIVE VALUE. SO UNDER EVIDENCE CODE SECTION 350 AND MOST PARTICULARLY 352, THE COURT WILL NOT PERMIT THE TESTIMONY OF BRUNN OR PFEIFFER.

 

THANK YOU.   NEXT. CATEGORY NUMBER 4, THE PEOPLE SEEK THE EXCLUSION AND/OR LIMITATION OF TESTIMONY FROM OTHER IDENTIFIED WITNESSES IN ORDER, JOHN BRANCA, DOES THE DEFENSE STILL WISH TO CALL MR. BRANCA?

 

MR. CHERNOFF:   WELL, OF COURSE, WE WISH TO.   BUT YOU HAVE ALREADY RULED ON THAT PART.   AND WE FOLLOW YOUR INSTRUCTIONS.

 

THE COURT:   ALL RIGHT.   THANK YOU.

 

MR. CHERNOFF:   YOU TOLD US THAT FINANCES ARE NOT GOING TO BE RELEVANT.

 

THE COURT:   AND THAT IS THE ONLY BASIS.   THANK YOU. THEN THE EXCLUSION REMAINS.   MR. BRANCA WILL NOT BE A WITNESS IN THIS CASE UNDER EVIDENCE CODE SECTIONS 350 AND 352. SUSAN ETOK, MR. WALGREN AND/OR MISS BRAZIL.

 

MR. WALGREN:   THANK YOU, YOUR HONOR. THE DEFENSE OFFER OF PROOF IS THAT IN MARCH OF 2009, MICHAEL JACKSON ASKED MISS ETOK FOR PROPOFOL. WHAT THEY DON’T PUT IN THERE IS THAT SHE DECLINED TO GIVE HIM ANY ACCORDING TO THE STATEMENT SHE PROVIDED TO THE POLICE. THE PEOPLE DON’T FEEL — AND I WILL POINT OUT SHE IS NOT A MEDICAL DOCTOR.   THE DEFENSE LISTS HER AS DOCTOR ETOK.   I JUST WANT TO BE CLEAR SINCE WE ARE TALKING ABOUT MEDICAL DOCTORS.   I BELIEVE SHE HAS A PH.D. IN ENGINEERING OR SOMETHING OF THAT NATURE.   I DON’T WANT THE COURT TO THINK SHE IS A PRESCRIBING MEDICAL DOCTOR. BUT IN ANY EVENT, THE PEOPLE WOULD OBJECT AS TO RELEVANCE ESPECIALLY IN LIGHT OF THE COURT’S RULING ALREADY ON DOCTOR METZGER, ADAMS, AND LEE WHICH SEEMS TO BE OFFERED BY THE DEFENSE FOR THE SAME GENERAL PRINCIPLES. IT ALSO BEGINS TO THAT IS THE PEOPLE’S OBJECTION.

 

THE COURT:   MR. CHERNOFF.

 

MR. CHERNOFF:   IT’S VITAL FOR THE DEFENSE TO SHOW THE DESPERATION OF MICHAEL JACKSON HAD FOR THIS PARTICULAR DRUG PROPOFOL.   AND THE FACT THAT HE REQUESTED THIS DRUG AS EARLY OR I GUESS AS LATE AS MARCH, DOCTOR ETOK IS IMPORTANT.

 

THE COURT:   WELL, IS IT DOCTOR OR MISS?

 

MR. CHERNOFF:   WELL, SHE REFERS TO HERSELF AS DOCTOR.   I AM TRYING TO BE RESPECTFUL.

 

THE COURT:   OKAY.

MR. CHERNOFF:   YOU CAN CALL HER MS., IF YOU’D LIKE.

 

THE COURT:   NO.   WELL, I DON’T KNOW.   THERE ARE MANY INDIVIDUALS WHO HAVE DOCTORATES.   WE ALL KNOW THAT AS LAWYERS WE ALL HAVE DOCTORATES.

 

MR. CHERNOFF:   MR. WALGREN IS RIGHT.   SHE IS NOT A MEDICAL DOCTOR. APPARENTLY, ACCORDING TO HER, MICHAEL JACKSON ASKED HER BECAUSE HER AUNT IS AN ANESTHESIOLOGIST. AND THAT IS IN THE OFFER OF PROOF. FOR THE SAME REASON THAT WE ARE INTERESTED IN REQUESTING DOCTOR METZGER, FOR THE SAME REASON, WE ARE REQUESTING IT FOR DOCTOR ADAMS AND CHERYLIN LEE.   WE ARE INTERESTED IN REQUESTING IT FROM DOCTOR, MS. ETOK. SUBMITTED.

 

THE COURT:   ALL RIGHT. UNDER EVIDENCE CODE SECTION 352, I AM GOING TO PRECLUDE TESTIMONY FROM MISS ETOK.   I DID AGREE WITH THE DEFENSE POSTURE REGARDING 3 MEDICAL PROFESSIONALS.   AS FAR AS I AM CONCERNED, WHILE THERE MAY BE BARE RELEVANCE, I THINK IT’S AN EVIDENCE CODE SECTION 352 ISSUE IN TERMS OF CUMULATIVE. SO THE COURT PRECLUDES SUCH TESTIMONY. KAREN FAVE.

 

MR. CHERNOFF:   IT’S FAYE.   SORRY ABOUT THAT LINE.

 

THE COURT:   THAT IS MY FAULT.   KAREN FAYE. LET ME ASK THE PEOPLE, PLEASE.

 

MR. WALGREN:   THE PEOPLE DO HAVE AN OBJECTION TO BASED ON THE OFFER OF PROOF PROVIDED BY THE DEFENSE AS IT RELATES TO KAREN FAYE. AS THE COURT IS WELL AWARE, THE LAW SPECIFICALLY RECOGNIZES AND WILL, IN FACT, DIRECT THE JURY THAT THE PHYSICAL VULNERABILITIES OF A VICTIM OR THEIR POOR HEALTH IS NO DEFENSE TO A CHARGE OF INVOLUNTARY MANSLAUGHTER AS LONG AS IN THIS CASE CONRAD MURRAY PLAYED A SUBSTANTIAL ROLE IN THAT DEATH. IT APPEARS THEY WANT TO PUT ON MISS FAYE TO SAY THAT MICHAEL JACKSON WAS NOT HEALTHY, HE WAS WEAK, THIN, APPEARED TO BE UNDER THE INFLUENCE OF DRUGS IN THE WEEK PRIOR TO HIS DEATH.   HOW THAT RELATES TO CONRAD MURRAY’S CULPABILITY, RELIABILITY, OR RESPONSIBILITY FOR THE DEATH OF MR. JACKSON, THE PEOPLE CAN’T ASCERTAIN.   SHE HAS AN OPINION THAT MICHAEL WAS WEAK AND THIN, UNDER THE INFLUENCE DRUGS. AGAIN, THE DEFENDANT TAKES HIS VICTIM AS HE FINDS HIM, AND I JUST DON’T KNOW WHERE THE RELEVANCE IS AS IT RELATES TO THE CHARGES AND THE PEOPLE’S BURDEN OF PROOF AND THE DEFENSE QUITE FRANKLY IN THIS CASE.

 

THE COURT:   DO THE PEOPLE ANTICIPATE TESTIMONY FROM MR. ORTEGA OR OTHERS REGARDING MR. JACKSON’S PHYSICAL CONDITION NOT ONLY THE NIGHT BEFORE HIS DEATH BUT ALSO THE WEEK PRECEDING WHEN THERE WAS THIS MEETING?

 

MR. WALGREN:   YES.

 

THE COURT:   SO THE PEOPLE INTEND TO PRESENT THAT EVIDENCE THAT THERE WAS A MEETING, I BELIEVE, AT THE HOLMBY HILLS HOME WITH MEMBERS OF AEG, MR. ORTEGA, MR. JACKSON, AND DOCTOR MURRAY?

 

MR. WALGREN:   YES.

 

THE COURT:   WOULD THAT BE ABOUT THAT TIME PERIOD THAT SEEMS TO BE PART OF THE DEFENSE OFFER OF PROOF FROM MISS FAYE?

 

MR. WALGREN:   IS THE COURT INQUIRING SPECIFICALLY ABOUT THAT MEETING?

 

THE COURT:   NO.

 

MR. WALGREN:   I THINK WE ARE TALKING ABOUT ROUGHLY THE SAME TIME PERIOD.   I DON’T KNOW IF THE COURT – SHE WAS NOT AT THAT MEETING BUT APPARENTLY IS COMMENTING ON IT.

 

THE COURT:   THAT SEEMS TO BE THE TIMEFRAME IN ISSUE WHERE MR. ORTEGA HIMSELF EXPRESSED SOME CONCERN REGARDING THE PHYSICAL CONDITION OF MR. JACKSON.

 

MR. WALGREN:   CORRECT.

 

THE COURT:   THAT’S WHY IT’S COMING IN.   SO IT’S RELEVANT UNDER EVIDENCE CODE SECTION 350.   IT’S NOT SUBSTANTIALLY MORE PREJUDICIAL THAN PROBATIVE UNDER THAT SECTION. SO THE PROFFERED TESTIMONY OF MISS FAYE AS TO THE CONDITION OF MR. JACKSON APPROXIMATELY A WEEK BEFORE HIS DEMISE IS ADMISSIBLE AND WILL BE RECEIVED. TRAVIS PAYNE.   MR. PAYNE WAS THE ASSISTANT

 CHOREOGRAPHER.

 

MR. WALGREN:   WE HAVE NO DISCOVERY FOR MR. PAYNE WHATSOEVER.   I DON’T KNOW THE SOURCE OF THE DEFENSE INFORMATION SAYING HE HAS PERSONAL KNOWLEDGE OF JACKSON’S MENTAL AND PHYSICAL CONDITION.   THEY HAVE NOT PROVIDED US WITH ANY DISCOVERY.   THEY, IN FACT, REPRESENTED THEY HAVE NEVER SPOKEN TO HIM.   SUBJECT TO, YOU KNOW, DISCOVERY AND OFFER OF PROOF, THE PEOPLE WOULD SEEK EXCLUSION.

 

MR. CHERNOFF:   I SAT WITH THE PEOPLE WATCHING ABOUT TWO WEEKS WORTH OF VIDEO WITH TRAVIS PAYNE AND MICHAEL JACKSON TOGETHER THE WEEK BEFORE HIS DEATH.

 

THE COURT:   WELL, SO DID I.   I DIDN’T SPEND THE AMOUNT OF TIME YOU IT. BUT EXACTLY WHAT IS MR. PAYNE GOING TO SAY?

 

 

MR. CHERNOFF:   HE WILL BE ABLE TO TESTIFY TO HIS CONDITION MENTALLY AND PHYSICALLY.   HE WILL ALSO BE ABLE TO TESTIFY TO HIS, WHETHER THE DAYS THAT HE DID NOT SHOW FOR REHEARSAL AND HOW HE LOOKED ON THE 19TH.

 

THE COURT:   WELL, DO YOU KNOW THAT, OR ARE YOU SPECULATING BASED UPON YOUR REVIEW OF THE FOOTAGE?

 

MR. CHERNOFF:   YOU MEAN BASED ON THE FACT HE WAS RIGHT THERE WITH HIM DURING THOSE DAYS?   I AM BASICALLY, I AM USING THAT AS CIRCUMSTANTIAL EVIDENCE THAT HE WOULD HAVE PERSONAL KNOWLEDGE OF HOW MICHAEL JACKSON WAS PHYSICALLY AND MENTALLY, YES.

 

THE COURT:   MR. WALGREN.

 

MR. WALGREN:   SUBJECT TO DISCOVERY AND OFFER OF PROOF, WE WOULD SEEK EXCLUSION AND BAR ANY REFERENCE IN OPENING STATEMENT OR AT ANY OTHER TIME UNTIL THE COURT RULES ON THIS WITNESS.   THERE IS NO DISCOVERY TO EVEN DEAL WITH THIS ISSUE AT THIS POINT.

 

THE COURT:   WELL, IT’S YOUR POSITION, MR. CHERNOFF, THAT BECAUSE OF FOOTAGE YOU MAY HAVE SEEN SHOWING THAT MR. PAYNE WAS PRESENT DURING VARIOUS APPEARANCES OF MR. JACKSON THAT HE MUST HAVE OBSERVED MR. JACKSON AND MUST HAVE KNOWN HOW MR. JACKSON WAS FEELING AND DOING?

 

MR. CHERNOFF:   YES.   HE WAS WITH HIM DURING THAT PERIOD OF TIME, TALKING WITH HIM, DANCING WITH HIM, UP ON STAGE WITH HIM.   THERE WERE PERIODS OF TIME HE WAS WORKING WITH HIM ON DANCE MOVES, AS YOU RECALL. BUT YEAH, THAT IS MY POSITION, JUDGE, YES.

 

THE COURT:   WELL, IT CERTAINLY CAN WORK BOTH WAYS.

 

MR. CHERNOFF:   ABSOLUTELY.

 

THE COURT:   WHAT I GATHER, YOU ARE PUTTING ON A WITNESS, AND YOU REALLY DON’T KNOW EXACTLY WHAT HE IS GOING TO SAY.

 

MR. CHERNOFF:   THE DIFFERENCE IS YOU HAVE ALLOWED THE PROSECUTION TO PRESENT A MOVIE OF HOW EXCITED AND HEALTHY MICHAEL JACKSON IS.   WE DON’T GET TO DO THAT WITH OUR FOOTAGE.   IT DOESN’T MATTER THE REASON.   I UNDERSTAND WE DON’T.

 

THE COURT:   WELL, BECAUSE MR. FLANAGAN SAID IT WOULD BE A WASTE OF TIME.

 

MR. CHERNOFF:   WELL, I THOUGHT —

MR. FLANAGAN:   THAT IS A MISSTATEMENT.   THAT IS A MISQUOTE.

 

MR. CHERNOFF:   I THOUGHT IT WAS BECAUSE MR. FLANAGAN VIOLATED YOUR ORDERS. IS IT BECAUSE HE THOUGHT WOULD BE A WASTE OF TIME?

 

THE COURT:   SO MR. PAYNE IS GOING TO SAY THAT MR. JACKSON AT TIMES WAS NOT IN THE BEST OF HEALTH?

 

MR. CHERNOFF:   YES.

THE COURT:   OR UP TO THE TOP OF HIS GAME?

MR. CHERNOFF:   WE BELIEVE THAT.

 

MR. WALGREN:   WELL, THEN THIS IS INSUFFICIENT OFFER OF PROOF BECAUSE THAT IS QUITE SIMPLY NOT WHAT THE VIDEO SHOWS.   THE VIDEO SHOWS MICHAEL JACKSON IN APPARENT STRONG HEALTH KEEPING UP WITH DANCERS HALF HIS AGE. SO IF OFFER OF PROOF IS THAT THE DEFENSE WOULD USE THAT VIDEO, THIS IS THE SAME DEFENSE TEAM WHO DIDN’T WANT TO PURSUE IT ANY FURTHER.   AND IF THAT IS THE OFFER OF PROOF IS THAT VIDEO, THEN IT IS INSUFFICIENT.

 

MR. CHERNOFF:   THERE IS VIDEO THAT WE ARE NOT ALLOWED TO SHOW SHOWS MICHAEL JACKSON IS HUDDLED UNDER BLANKETS AND COLD ON THE 19TH.   TRAVIS PAYNE WAS AVAILABLE FOR THAT. IT’S, IF THE PROSECUTION BELIEVES THAT THAT’S ALL THAT TRAVIS PAYNE IS GOING TO SAY, THEN WHY OBJECT?   THEN WHY OBJECT?   THEY SHOULD CALL TRAVIS PAYNE.

 

THE COURT:   WELL, I AM NOT SAYING WHO SHOULD CALL WHOM.   AS A RULE WHEN WE HAVE CASES, WE KNOW WHAT THE WITNESS IS GOING TO SAY.

 

MR. CHERNOFF:   WELL, AS A RULE AND IN MANY CASES AS A DEFENSE ATTORNEY, I DON’T KNOW IF YOU’VE BEEN A DEFENSE ATTORNEY.   BUT I CAN TELL YOU —

 

THE COURT:   WELL, THANKS FOR THE QUESTION.   IN FACT, I DID WORK FOR A DEFENSE FIRM FOR A SHORT PERIOD OF TIME.

 

MR. CHERNOFF:   YOU KNOW, SOMETIMES PEOPLE DON’T TALK TO THE DEFENSE.

 

THE COURT:   THAT’S RIGHT.   THEY HAVE A CONSTITUTIONAL RIGHT UNDER MARCY’S LAW NOT TO.

 

MR. CHERNOFF:   SO SOMETIMES WE HAVE TO PUT THINGS TOGETHER EITHER WITH AN INVESTIGATOR OR THROUGH OTHER PIECES OF EVIDENCE.   WE ARE DOING THAT WITH TRAVIS PAYNE. IF YOU — I AM PERFECTLY SATISFIED WITHHOLDING THE DECISION WITH REGARD TO TRAVIS PAYNE UNTIL WE CAN GET MORE INFORMATION.   I AM JUST NOT SURE THAT I CAN GET YOU ANYMORE INFORMATION BECAUSE I CAN’T TELL YOU THAT THIS PARTICULAR WITNESS IS GOING TO TALK TO OUR INVESTIGATOR.

 

THE COURT:   WELL, RIGHT NOW, I AM GOING TO DEFER IT.

MR. CHERNOFF:   OKAY, JUDGE.

 

THE COURT:   SO I AM NOT AT ALL SATISFIED AT THIS POINT IN TIME THAT THERE HAS BEEN THE REQUISITE PROFFER AS TO THE RELEVANCE OF THE TESTIMONY OF MR. PAYNE.   I AM HAPPY TO REVISIT IT.   SO I AM DEFERRING ANY RESOLUTION FOR AWHILE.   SO WE CAN HAVE MR. PAYNE LISTED AS A POTENTIAL WITNESS.   WHETHER HE TESTIFIES OR NOT IS ANOTHER STORY. GRACE RWARAMBA.   I THINK IT’S A LITTLE NAME TO PRONOUNCE.   AND IF I MISPRONOUNCE IT, I APOLOGIZE. MR. WALGREN.

 

MR. WALGREN:   MISS RWARAMBA, YOUR HONOR, THE PEOPLE — I MEAN, EXCUSE ME.   THE DEFENSE OFFER OF PROOF GOES BACK TO EVENTS AS FAR BACK AS 1992 SEEKING TO ELICIT TESTIMONY AS TO APPARENT DRUG USE OR EVENTS THAT HAVE TRANSPIRED IN ALMOST 2 DECADES WORTH OF TIME. THE PEOPLE WOULD OBJECT TO HER TESTIMONY OUTRIGHT.   I WOULD POINT OUT, YOUR HONOR, IN, AT THE TIME OF MICHAEL JACKSON’S DEATH, SHE WASN’T EVEN IN THE UNITED STATES.   SHE WAS IN EUROPE.   SHE HAD STOPPED WORKING FOR MICHAEL JACKSON, I BELIEVE, IN APRIL OF 2009, MONTHS BEFORE HIS DEATH.   SHE WAS NO LONGER EVEN AN EMPLOYEE THERE. AND MOST OF THE EVENTS THAT APPARENTLY THE DEFENSE SEEKS TO ELICIT FROM HER OCCUR IN AGAIN THE 90’S, EARLY 2000’S ACCORDING TO THEIR OFFER OF PROOF.   AND THE PEOPLE THINK IT’S ABSOLUTELY IRRELEVANT AND OFFERS NO ISSUES AT HAND. AGAIN, SHE DIDN’T WORK THERE BEYOND APRIL OF 2009 AND LEARNED OF HIS DEATH, I BELIEVE, THROUGH NEWS ACCOUNTS WHILE IN EUROPE.   PEOPLE WOULD SEEK HER EXCLUSION.

 

THE COURT:   MR. CHERNOFF.

 

MR. CHERNOFF:   OBVIOUSLY, WE WOULD LIKE TO HAVE MS. RWARAMBA TO TESTIFY TO ALL EVENTS THAT OCCURRED IN THE TWO DECADES MICHAEL JACKSON USED DRUGS.   BUT IN LIGHT OF YOUR RECENT RULING, AT LEAST YOUR HONOR WOULD CONSIDER HER TESTIMONY WITH REGARD TO THE EVENTS.   WE ARE NOT CHANGING OUR REQUEST. WHAT I AM SAYING IS IF YOU STILL BELIEVE THAT THAT IS NOT RELEVANT OR MATERIAL, WHICHEVER YOUR RULING IS, AT LEAST DURING THE PERIOD OF TIME BETWEEN JANUARY TO APRIL OF 2009, SHE HAS THE — SHE IS IN THE HOUSE.   SHE HAS ABILITY TO OBSERVE MANY EVENTS THAT ARE GOING TO BE RELEVANT PERHAPS TO THE DEFENSE. NOW WE BELIEVE THAT IT’S RELEVANT WHAT HAPPENED IN 2008.   WE BELIEVE IT’S RELEVANT TO WHAT HAPPENED IN 2007.   I AM SUGGESTING AT LEAST IN 2009 WHILE MICHAEL JACKSON WAS SEEING ARNOLD KLEIN IN HIS ACTIVITIES DURING THAT PERIOD OF TIME SHOULD BE PERMITTED.   THE DEFENSE SHOULD BE PERMITTED TO EXPLORE MS. RWARAMBA.

 

THE COURT:   SUBMITTED?

MR. CHERNOFF:   IT IS, YOUR HONOR.

THE COURT:   BY THE PEOPLE?

MR. WALGREN:   YES, YOUR HONOR.

 

THE COURT:   THE COURT GRANTS THE PEOPLE’S MOTION TO EXCLUDE ANY PROFFERED TESTIMONY FROM MISS RWARAMBA.   I DO NOT BELIEVE IT’S RELEVANT.   AND IN PARTICULAR, IT IS SUBSTANTIALLY MORE DISTRACTING AND PREJUDICIAL THAN IT IS PROBATIVE UNDER EVIDENCE CODE SECTION 352.   SO THE COURT WILL PRECLUDE ANY SUCH PROFFERED TESTIMONY. DOCTOR TOHME TOHME.   THERE IS A BODY ATTACHMENT BEING HELD FOR DOCTOR TOHME. PEOPLE.

 

MR. WALGREN:   THE PEOPLE DO SEEK THE EXCLUSION OF DOCTOR TOHME TOHME’S PROFFERED TESTIMONY.   OTHER THAN SPECULATION AND THE DEFENSE THAT THEY BELIEVE THIS OR THEY BELIEVE THAT, THEY HAVEN’T SPOKEN TO HIM.   AND IT APPEARS THEIR MAIN POINT OF REFERENCE AS TO THE RELEVANCE OF DOCTOR TOHME TOHME IS THAT HE NEGOTIATED THE CONTRACT BETWEEN AEG AND MICHAEL JACKSON. THE PEOPLE SEEK HIS COMPLETE EXCLUSION, HAS NO BEARING ON THE ISSUES AT HAND, HAS NO RELEVANCE TO THE ISSUES AT HAND.   AND THE PEOPLE SEEK IT AS EXCLUDED BOTH UNDER 350 AND 352.

 

THE COURT:   MR. CHERNOFF.

 

MR. CHERNOFF:   DOCTOR TOHME TOHME WAS INSTRUMENTAL IN OCTOBER WHEN HE NEGOTIATED THE CONTRACT WITH AEG AND MICHAEL JACKSON.  HE WAS INSTRUMENTAL SIX MONTHS BEFORE THAT WHEN THE AEG AND MICHAEL JACKSON COULD NOT COME TO TERMS. HE WAS INSTRUMENTAL IN NEGOTIATING FOR MICHAEL JACKSON AND EXTENDING TO THE 50 SHOWS.   MICHAEL JACKSON THEREAFTER TOLD PARTICULAR INDIVIDUALS, INCLUDING KAREN FAYE AND OTHERS THAT YOU HAVE EXCLUDED, BUT THAT HE DID NOT BELIEVE THAT HE COULD COMPLETE THOSE 50 SHOWS, THAT HE DID NOT BELIEVE HE WAS PHYSICALLY ABLE TO COMPLETE THOSE 50 SHOWS. NOW IT’S TRUE THAT DOCTOR TOHME TOHME WILL NOT TALK TO US.   YOU WERE HERE WHEN HIS LAWYER FOUGHT TOOTH AND NAIL JUST HAVING HIM SUBPOENAED.   AND THE PROSECUTION HAS NOT BEEN ABLE TO TALK TO DOCTOR TOHME, I AM ASSUMING.   MAYBE THEY HAVE.

 

COURT:   WELL, IF THEY HAVE, THEY SHOULD HAVE PROVIDED DISCOVERY. HAVE THEY?

 

MR. WALGREN:   NO, YOUR HONOR.

 

MR. CHERNOFF:   HE WAS, HE WAS EXTREMELY IMPORTANT IN MICHAEL JACKSON’S NEGOTIATION WITH AEG AND HIS AGREEMENTS WITH AEG.   AND WE WANT TO ESTABLISH THAT PARTICULAR ISSUE PRIMARILY BECAUSE MICHAEL JACKSON’S STATE OF MIND AT THE TIME THAT HE DIED.

 

THE COURT:   SUBMITTED, MR. CHERNOFF?

MR. CHERNOFF:   IT IS.

THE COURT:   MR. WALGREN.

MR. WALGREN:   SUBMITTED.

 

THE COURT:   AND THAT IS PRECISELY THE ISSUE WHERE UNDER EVIDENCE CODE SECTION 350 AND 352, I AM NOT GOING TO PERMIT SUCH TESTIMONY.   WHILE IT MAY BE INTERESTING FOR SOME SORT OF CIVIL PROCEEDING, IT IS OF NO RELEVANCE OR MATERIALITY AS TO THIS CRIMINAL PROCEEDING IN VIEW OF THE UNKNOWNS. AND THE FACTORS THAT MAY HAVE GONE INTO NEGOTIATIONS FOR A TOUR OF A WORLDWIDE NATURE AND HOW MANY DIFFERENT NIGHTS WERE GOING TO BE INVOLVED AND THE MONEY THAT WAS INVOLVED AND THE OTHER CIRCUMSTANCES WHILE APPEALING FACIALLY HAVE NO RELEVANCE TO THIS CASE AND ARE REMARKABLY DISTRACTING TO THE ISSUES AT HAND UNDER EVIDENCE CODE SECTION 352. SO INITIALLY, THE PROPOSED TESTIMONY, WHAT IT MAY BE SINCE IT’S BASICALLY UNKNOWN, IS IRRELEVANT. BUT MORE IMPORTANTLY, UNDER EVIDENCE CODE SECTION 352, THE REAL POTENTIAL FOR DISTRACTION AND DIVERGENCE SUBSTANTIALLY OUTWEIGHS THE PROBATIVE VALUE. SO THE COURT WILL PRECLUDE SUCH TESTIMONY. AND AT THIS POINT IN TIME, I AM GOING TO QUASH ANY SUBPOENA FOR DOCTOR TOHME THAT’S BEING HELD. NEXT.   DOCTOR STEVEN PUSTILNIK.   I AM REALLY CONFUSED ABOUT THE WITNESS AND THE RELEVANCE IN THIS CASE. SO LET ME HEAR FROM THE PARTIES SO THAT YOU CAN GIVE ME A LITTLE MORE INFORMATION. PEOPLE.

 

MR. WALGREN:   THANK YOU, YOUR HONOR. AT THE DEFENSE REQUEST, THE CORONER’S OFFICE ALLOWED DOCTOR PUSTILNIK TO VISIT THE FACILITIES, VIEW SOME OF THE ITEMS OF EVIDENCE.   AND MY UNDERSTANDING, THIS TOOK PLACE ON APRIL 14 OF THIS YEAR 2011. DOCTOR PUSTILNIK WAS ABLE TO VIEW WHATEVER HE ASKED TO VIEW AND WAS GIVEN ESSENTIALLY A TOUR OF THE FACILITIES AND DOCUMENTED THIS IN HIS REPORT.   THE REPORT HAS NO USEFUL RELEVANT INFORMATION WHATSOEVER.   HE DOES NOT — OTHER THAN COMMENTING ON THE FACILITIES AND ESSENTIALLY SAYING THAT HE MAY HAVE DONE THINGS DIFFERENTLY, HE DOES NOT OFFER ANY OPINION REGARDING ANY TOXICOLOGY FINDINGS. HE DOES NOT OFFER ANY OPINION REGARDING OR ATTACKING THE CORONER’S MEDICAL FINDINGS.   AND MOST IMPORTANTLY, AS A DEPUTY MEDICAL EXAMINER OR AS A MEDICAL EXAMINER, HE DOES NOT OFFER ANY OPINION WHATSOEVER ON THE CAUSE OF DEATH. SO OTHER THAN TO JUST PUT THIS INDIVIDUAL BEFORE THE JURY AND COMMENT THAT HE WOULD HAVE USED A DIFFERENT FLASH ON A CAMERA OR HE WOULD HAVE USED A STOOL OR USED DIFFERENT TYPE OF LIGHT BULBS WHICH ARE LITERALLY THE TYPES OF OPINIONS HE OFFERS, THIS WITNESS HAS NO RELEVANCE WHATSOEVER, OFFERS NO RELEVANT OPINION, AND SHOULD BE EXCLUDED OUTRIGHT.

 

THE COURT:   MR. CHERNOFF.

 

MR. CHERNOFF:   THERE IS NO REQUIREMENT THAT AN EXPERT TESTIFY ONLY AS TO CAUSE OF DEATH NO MATTER WHAT HIS EDUCATIONAL BACKGROUND AND TRAINING.   WE PROVIDED A REPORT TO THE PEOPLE DETAILING THE PROBLEMS WITH THE CORONER’S INVESTIGATION OF WHAT DOCTOR PUSTILNIK BELIEVED WERE PROBLEMS WITH THE CORONER’S INVESTIGATION AND ANALYSIS.   THAT WAS PROVIDED TO THEM. HE ALSO OBSERVED CONTENTS OF THE STOMACH. HE OBSERVED THAT.   THERE IS AN ISSUE ABOUT THE CONTENTS OF WHAT THE STOMACH WAS, WHETHER IT CONSISTED MAINLY OF BLOOD AND DID NOT. I AM NOT SURE I UNDERSTAND WHY THE PEOPLE HAVE PUT ON, HAS GIVEN US EXPERT REPORTS THAT DO NOT SAY ANYTHING ABOUT, NECESSARILY ABOUT WHAT CAUSED MICHAEL JACKSON’S DEATH.   THAT DOESN’T MAKE THEM ENTIRELY IRRELEVANT IF THEY ARE PART OF THE PIECE THEY ARE PROSECUTING, WHAT THEY ARE TRYING TO SHOW IN THE CASE. THEY DON’T, THEY MAY FIND IT IRRELEVANT. BUT THAT IS JUST THEIR PARTICULAR OPINION.   IF THE CORONER’S INVESTIGATION WAS INCOMPLETE, IF CERTAIN THINGS SHOULD HAVE BEEN DONE OR WERE NOT DONE AND THEY MADE A DECISION ABOUT WHETHER TO CLASSIFY THIS CASE AS A HOMICIDE, WE HAVE THE RIGHT TO QUESTION THAT WITH EXPERTS OR OTHERWISE.

 

THE COURT:   DOES DOCTOR PUSTILNIK OFFER AN OPINION AS TO CAUSE OF DEATH AND THE MODE AND MANNER OF DEATH?

 

MR. CHERNOFF:   NO, HE DOES NOT.

 

THE COURT:   I AM AT A DISADVANTAGE.   I HAVEN’T SEEN THE REPORT.

 

MR. WALGREN:   PEOPLE HAVE NO OBJECTION TO THE COURT VIEWING THE REPORT. I WOULD ALSO COMMENT, YOUR HONOR, AS FAR AS HE VIEWED THE STOMACH CONTENTS, THE COURT SIGNED AN ORDER RELEASING A PORTION OF THE STOMACH CONTENTS TO THE DEFENSE.   THEY WANT TO HAVE THAT TESTED, ANALYZED, THAT’S FINE.   THAT IS HARD DATA.   THAT IS SCIENTIFIC OPINION. TO SAY THAT THE DISCOVERY IS HE VIEWED IT WITH NO OPINION WHATSOEVER, THERE IS NO RELEVANT ADMISSIBLE EVIDENCE HERE.

 

MR. CHERNOFF:   MR. WALGREN IS CONFUSING WHAT HE CONSIDERS TO BE THE STRENGTH OF THE EVIDENCE WITH RELEVANT EVIDENCE.   HE CAN ARGUE ANYTHING HE LIKES IN FRONT OF A JURY. THE ISSUE IS WHETHER OR NOT AS AN EXPERT HE CAN TESTIFY TO THE PROCEDURES AND PROCESS OF ANOTHER CORONER’S OFFICE, AND HE CLEARLY CAN.

 

MR. WALGREN:   THEN WE HAVE NOT BEEN PROVIDED DISCOVERY.

 

THE COURT:   WHEN YOU SAY HE CAN TESTIFY TO THE PROCEDURES, DOES HE CHALLENGE OR CRITIQUE THE PROCEDURES?

 

MR. CHERNOFF:   LET ME PUT IT THIS WAY.   HE WILL NOT TESTIFY TO ANYTHING OUTSIDE THE EXPERT REPORT THAT HE PROVIDED, THAT WE PROVIDED TO THE PEOPLE.   THAT’S ALL HE WILL TESTIFY TO.   IF HE WERE TO TESTIFY TO MORE THAN THAT, WE WOULD PROVIDE MORE THAN THAT. IF YOU WANT TO REVIEW THAT, I DON’T, AS LONG AS IT IS NOT PART OF THE RECORD, YOU KNOW, THAT’S FINE. BUT THE BOTTOM LINE IS, IF THE ISSUE IS WHETHER OR NOT HE THINKS THAT THE EVIDENCE HIMSELF IS IMPORTANT ENOUGH TO PRESENT, THAT IS NOT THE ISSUE. THE ISSUE IS WHETHER OR NOT THIS EXPERT HAS THE QUALIFICATIONS UNDER — I GUESS IT’S NOT 702 HERE. BUT WHATEVER YOUR RULINGS POINTED OUT.

 

THE COURT:   BE 801 OF THE EVIDENCE CODE.

 

MR. CHERNOFF:   WHETHER HE COULD EXPRESS AN OPINION, AND HE CLEARLY HAS THAT ABILITY.

 

THE COURT:   WELL, WHAT I AM HEARING IS HE DOESN’T HAVE AN OPINION.

 

MR. CHERNOFF:   HE DOES.   HE DOES.   AND THERE’S A REPORT.   WE PROVIDED THE REPORT TO THE PROSECUTION.

 

MR. WALGREN:   WE DON’T DISPUTE WE HAVE RECEIVED A REPORT.   THERE IS NO OPINION AS TO ANY OF THE RELEVANT MEDICAL ISSUES HERE.   AND KEEP IN MIND, THIS WAS A TOUR THAT HE WAS GRANTED TWO YEARS AFTER THE DEATH OF MICHAEL JACKSON. SO EVEN IF YOU TAKE WHATEVER HE OBSERVED AT THE VALUE, YOU KNOW, GIVEN THE GREATEST WEIGHT TO THE DEFENSE, HE IS OPINING ON THINGS TWO YEARS AFTER THE FACT. AND LITERALLY, HE IS OPINING ON THINGS SUCH AS THE TYPE OF LIGHT BULBS, THE FLASH THAT WAS USED ON THE CAMERAS, THINGS OF THAT NATURE. HE DID VIEW THE EVIDENCE, BUT THERE IS NO OPINION AS TO THE RESULTS THAT THE CORONER FOUND REGARDING THE EVIDENCE.   THERE IS NO TOXICOLOGY FINDING.   THERE IS NO OPINION THAT THE CORONER ERRED IN THEIR MEDICAL FINDINGS, THAT THE CORONER ERRED IN THE CAUSE OF DEATH, THAT THE CORONER ERRED IN THEIR FINDINGS REGARDING TOXICOLOGY. THERE IS NO RELEVANT OPINION.   THE DEFENSE CAN’T SIMPLY JUST THROW SOMEONE ON THERE TO OFFER IRRELEVANT CRITIQUES MADE TWO YEARS AFTER THE FACT.

 

MR. CHERNOFF:   WHY DON’T YOU LOOK AT THE REPORT, JUDGE?

 

THE COURT:   IF I LOOK AT THE REPORT, IT’S PART OF THE RECORD.   I JUST CAN’T LOOK AT A REPORT AND ISSUE THE RULING.   SO, IF IT’S PART OF THE RECORD, IT’S FINE.   BUT WE DON’T DO IT INFORMALLY.

 

MR. CHERNOFF:   ALL RIGHT. THEN WHAT YOU HAVE IN FRONT OF YOU ARE TWO PEOPLE WHO DISAGREE AS TO WHETHER OR NOT WHAT DOCTOR PUSTILNIK’S REPORT PROVIDES.

 

THE COURT:   AND WITH A THIRD WHO DOESN’T HAVE A CLUE WHOSE GOT THE RESPONSIBILITY TO DECIDE ADMISSIBILITY. SO I DON’T KNOW ANY OTHER WAY AROUND IT.

 

MR. WALGREN:   THE DEFENSE HASN’T DISPUTED MY CHARACTERIZATION AS TO THE LACK OF ANY CONTRADICTORY FINDINGS MADE BY DOCTOR PUSTILNIK.   SO I DON’T SEE THE RELEVANCE.

 

MR. CHERNOFF:   IF DOCTOR PUSTILNIK TESTIFIES THAT THE CORONER, AS MR. WALGREN APPARENTLY SUGGESTED, IF THE CORONER FOLLOWED ALL OF WHAT HE CONSIDERS TO BE PROPER AND NECESSARY PROCEDURES IN THIS INVESTIGATION, THEN THEY SHOULD BE PERFECTLY PLEASED TO HAVE DOCTOR PUSTILNIK TESTIFY.   BUT THAT IS NOT WHAT HIS REPORT SAID. HIS REPORT FOUND PROBLEMS WITH THE CORONER’S INVESTIGATION.   HIS TESTIMONY WILL BE RELATED TO THAT ALONE.   WE JUST HAVE A DIFFERENCE OF OPINION ABOUT WHAT DOCTOR PUSTILNIK IS GOING TO BE TESTIFYING TO BASED ON HIS REPORT.   BUT HE WILL NOT BE TESTIFYING TO ANYTHING BASED ON ANYTHING OUTSIDE OF HIS REPORT.

 

THE COURT:   DO COUNSEL SEE ANYWAY AROUND IT OTHER THAN MY REVIEWING THE REPORT?

 

MR. CHERNOFF:   WELL, IF IT’S GOING TO BE PART OF THE RECORD, IT GOES OFF INTO THE EAR —

 

MR. WALGREN:   I THINK IT SHOULD BE EXCLUDED SUBJECT TO A 402 HEARING WHERE DOCTOR PUSTILNIK TESTIFIES OUTSIDE THE PRESENCE OF THE JURY AND PROVIDES AN OFFER OF PROOF BECAUSE WE DON’T HAVE IT AT THIS CURRENT STATUS.

 

THE COURT:   WELL, THE DEFENSE POSITION IS THAT WHAT YOU SEE AND WHAT YOU’VE GOT IS WHAT YOU SEE.   YOU DON’T ANTICIPATE ANYTHING ELABORATING ON THAT, MR. CHERNOFF?

 

MR. CHERNOFF:   I DON’T ANTICIPATE IT, NO.

 

THE COURT:   SO IT SEEMS TO ME THE 402 ISSUES IS ON ITS PAPERS.   TELL ME WHAT YOU WANT TO DO.

 

MR. CHERNOFF:   WELL, I DON’T —

 

MR. WALGREN:   THEN WE’LL, WE HAVE NO OBJECTION TO THE COURT REVIEWING THE REPORT THEN.

 

MR. CHERNOFF:   AND I DO IF IT’S GOING TO WIND UP IN THE PUBLIC EYE, PUBLIC DOMAIN.   I WILL AGREE WITH MR. WALGREN THAT WE HAVE SOME TYPE OF PRELIMINARY INVESTIGATION PRIOR TO HIM TESTIFYING.

 

THE COURT:   WELL, DO YOU WANT TO DEFER IT THEN?

 

MR. CHERNOFF:   I WOULD DEFER IT THEN.

 

THE COURT:   I WILL DEFER IT.   BUT AGAIN, YOU KNOW, AT SOME POINT, IT MAY COME TO BE THAT I REVIEW IT.   AND IF I REVIEW IT, IT SEEMS TO BE IT’S PART OF THE PUBLIC DOMAIN.   THAT’S YOUR CALL.   I CAN SEE A TACTICAL ADVANTAGE TO DEFERRING IT IN VIEW OF MY ADMONITIONS TO THE JURY. SO AS TO DOCTOR PUSTILNIK, THIS WILL BE A MATTER WE ADDRESS AT A POINT AFTER WHICH THE JURY IS SWORN.   OKAY.

 

THE COURT:   MICHAEL BUSH.

 

MR. WALGREN:   I WOULD ASK THE COURT TO TREAT THIS THE SAME WAY THE COURT TREATED MR. PAYNE, AND THAT IS WE HAVE NO DISCOVERY.   THE DEFENSE HAS NOT SPOKEN TO HIM. THE DEFENSE IS SPECULATING ON WHAT HE MAY OR MAY NOT HAVE   TO SAY. THEN IF IT’S NOT GOING TO BE OUTRIGHT EXCLUDED, I WOULD ASK THAT NO MENTION BE MADE OF MR. BUSH UNTIL AT SOME TIME THE COURT RULES ON HIM.

 

THE COURT:   MR. CHERNOFF, ANYTHING NEW AND DIFFERENT?

 

MR. CHERNOFF:   NO.   NEITHER THE PEOPLE NOR THE DEFENSE HAVE SPOKEN TO MR. BUSH.

 

THE COURT:   I WILL DEFER IT.   MY INCLINATION IS TO EXCLUDE.   BUT I WILL GIVE THE OPPORTUNITY FOR FURTHER INFORMATION TO BE DEVELOPED, IF IT’S OUT THERE.   BUT RIGHT NOW, IT’S NO-GO TERRITORY SUBJECT TO REVISITING. CHRIS CARTER?

 

MR. WALGREN:   THE COURT PREVIOUSLY EXCLUDED.

 

THE COURT:   RIGHT. NEXT.   FRANCISCO CASCIO.

 

MR. WALGREN:   THE DEFENSE OFFER OF PROOF IS THAT MICHAEL JACKSON STAYED WITH HIM IN NEW JERSEY IN 2007. THEY HAVE NOT SPOKEN TO HIM.   PEOPLE WOULD SEEK EXCLUSION AS TO IRRELEVANT.   AND THEY ARE ONLY SUPPORTING – THE PIECE OF INFORMATION IS THAT PREVIOUSLY EXCLUDED GRACE RWARAMBA STATED THAT MICHAEL WAS USING DRUGS AT THAT TIME. SO WE WOULD SEEK A COMPLETE EXCLUSION OF THIS WITNESS.

 

THE COURT:   MR. CHERNOFF.

 

MR. CHERNOFF:   YOU HAVE ALREADY RULED REGARDING GRACE RWARAMBA, JUDGE.

 

THE COURT:   THANK YOU. IT WILL BE THE SAME RULING AS TO MR. CASCIO. I DO NOT BELIEVE ANY ANTICIPATED TESTIMONY WAS RELEVANT. IT’S REMOTE.   AND UNDER EVIDENCE CODE SECTION 352, IT’S SUBSTANTIALLY MORE PREJUDICIAL THAN PROBATIVE. DOCTOR ALEX FARSCHCHIAN.

 

MR. WALGREN:   THANK YOU, YOUR HONOR. THE PEOPLE SEEK COMPLETE EXCLUSION OF THIS DOCTOR BASED ON THE DEFENSE OFFER OF PROOF.   IT’S ACTUALLY TWOFOLD.   IT SEEMS TO BE AN ATTEMPT TO ELICIT SANTA BARBARA INCIDENT AGAIN WHICH THE COURT HAS ALREADY EXCLUDED. ADDITIONALLY, AS BEST AS I CAN ASCERTAIN, THEY WANT TO ELICIT TESTIMONY REGARDING MICHAEL JACKSON’S VISIT TO BERLIN WHICH I BELIEVE OCCURRED IN 2002.   THE PEOPLE WOULD SEEK COMPLETE EXCLUSION OF THIS WITNESS UNDER BOTH 350 AND 352.

 

 

THE COURT:   MR. CHERNOFF?

 

MR. CHERNOFF:   YOU ALREADY KNOW OUR ARGUMENT ABOUT THE FACT THAT THE DOCTOR THAT PRESCRIBED MICHAEL JACKSON DEMEROL SHOULD BE ALLOWED TO TESTIFY.   SO I WON’T REHASH IT FOR THE COURT.

 

THE COURT:   AND SUBMIT IT?

MR. CHERNOFF:   IT IS.

 

THE COURT:   THANK YOU. IT IS NOT RELEVANT UNDER EVIDENCE CODE SECTION 350 IN VIEW OF THE TIMEFRAME, THE REMOTENESS.   AND UNDER EVIDENCE CODE SECTION 352, IT SUBSTANTIALLY IS MORE PREJUDICIAL THAN PROBATIVE AND DISTRACTING.   IT’S EXCLUDED. HOEFFLER, DOCTOR STEVEN HOEFFLER.

 

MR. WALGREN:   THE DEFENSE REPRESENTS WITHOUT ANY TIME REFERENCE OR ANY REFERENCE WHATSOEVER THAT THIS IS A DOCTOR IN L.A. WHO KNEW THE DRUGS KLEIN GAVE TO MICHAEL JACKSON. BASED ON THE COURT’S PREVIOUS RULINGS AS WELL AS A COMPLETE LACK OF AN OFFER OF PROOF, THE PEOPLE WOULD SEEK COMPLETE EXCLUSION OF THIS INDIVIDUAL.

 

MR. CHERNOFF:   THE PEOPLE ARE BEING A LITTLE DISINGENUOUS WHEN THEY HAVE ABOUT 7 PAGES OF E-MAILS FROM DOCTOR HOEFFLER THAT THEY RECEIVED FROM THE POLICE.   SO THEY KNOW EXACTLY WHAT HE WOULD TESTIFY TO. HOWEVER, YES, HE WOULD TESTIFY TO WHAT DOCTOR KLEIN WAS PROVIDING MICHAEL JACKSON.

 

THE COURT:   THANK YOU.

FOR THE SAME REASONS I HAVE INDICATED PREVIOUSLY AS TO DOCTOR KLEIN AND HIS STAFF, THE COURT WILL GRANT THE PEOPLE’S MOTION AS TO DOCTOR HOEFFLER AND PRECLUDE HIS TESTIMONY UNDER EVIDENCE CODE SECTION 350 AND MOST PARTICULARLY 352. I ALREADY RULED ON DOCTOR LABINER. DOCTOR NEAL RATNER.

 

MR. WALGREN:   YES.   BASED ON OUR PREVIOUS POSITION, YOUR HONOR, THE OFFER OF PROOF IS THAT THIS WAS A DOCTOR EVIDENTLY INVOLVED WITH MICHAEL IN 1995.   THE PEOPLE WOULD SEEK COMPLETE EXCLUSION OF THIS DOCTOR AS IRRELEVANT, INADMISSIBLE UNDER 350 AND 352.

 

THE COURT:   MR. CHERNOFF.

 

MR. CHERNOFF:   OUR ARGUMENT IS THE SAME, JUDGE.   I DON’T WANT TO REHASH IT.

 

THE COURT:   THANK YOU.   I APPRECIATE THAT. AND MY RULING IS THE SAME.   YOU ARE TALKING ABOUT A TIMEFRAME THAT IS REMARKABLY REMOTE GOING BACK TO 1995 HAVING TO DO WITH PARTIES ENTIRELY UNRELATED TO THIS MATTER, EXTRAORDINARILY IRRELEVANT, AND EXTRAORDINARILY DISTRACTING. WHILE IT MAY HAVE A CERTAIN APPEAL IN TERMS OF ATTENTION FOR INQUIRING MINDS, IT’S NOT RELEVANT FOR THESE PURPOSES AND UNDER 352 WILL BE EXCLUDED. VANVALIN, WE DID, DID WE NOT?

 

MR. CHERNOFF:   YOU DID.

THE COURT:   LAPERRUQUE?

MR. CHERNOFF:   DID THAT IS A WELL.

THE COURT:   DOCTOR CARY LOGAN.

MR. CHERNOFF:   WE HAVE REMOVED THAT.

 

THE COURT:   THAT’S RIGHT. SAME THING WITH DIETER WIESNER AND LEONARD ROWE, CORRECT?

 

MR. CHERNOFF:   CORRECT.

 

THE COURT:   ARE THERE ANY OTHER INDIVIDUALS OR SUBJECT MATTERS, MR. WALGREN?

 

MR. WALGREN:   NOT AT THIS POINT, YOUR HONOR.

THE COURT:   MISS BRAZIL?

MS. BRAZIL:   NO, YOUR HONOR.

THE COURT:   MR. CHERNOFF?

MR. CHERNOFF:   NO, JUDGE.

THE COURT:   MR. FLANAGAN?

MR. FLANAGAN:   NO.

THE COURT:   MR. GOURJIAN?

MR. GOURJIAN:   NO, YOUR HONOR.

 

THE COURT:   I DIDN’T RECEIVE ANY 402 AS TO THE ANTICIPATED TESTIMONY OF PEOPLE’S WITNESSES.   SO I DON’T KNOW IF THERE ARE ANY ISSUES OUT THERE THAT WE SHOULD BE ADDRESSING WITH REGARD TO THE PROPOSED PEOPLE’S WITNESS LIST.

 

MR. CHERNOFF:   WE’VE ALREADY DONE ONE ROUND OF IT.

THE COURT:   WE HAVE.

MR. CHERNOFF:   AND THAT WAS ADEQUATE FOR US.

 

THE COURT:   OKAY.   I DID RECEIVE FROM THE PARTIES PROPOSED QUESTIONNAIRES.   I AM STILL WORKING ON THEM.   I KNOW THAT MY 29-PAGE QUESTIONNAIRE BECAME A 38-PAGE PROPOSED QUESTIONNAIRE.   IT WILL BE BACK TO ABOUT 29.

 

MR. WALGREN:   I AM SORRY. WHAT’S THAT THE COURT RECEIVED?

THE COURT:   A DEFENSE MODIFIED QUESTIONNAIRE.   I GOT THAT BY —

MR. GOURJIAN:   YOU ARE REFERRING TO THE ONE LAST WEEK.

THE COURT:   LAST WEEK.

MR. GOURJIAN:   YES.

 

MR. WALGREN:   I DIDN’T REALIZE THAT HAD BEEN SUBMITTED TO THE COURT.   I THOUGHT THE PARTIES WERE STILL WORKING ON IT.

 

MR. GOURJIAN:   I THOUGHT YOUR HONOR REQUESTED WE FILE IT WITH HIM AS WELL.

 

THE COURT:   RIGHT.

 

MR. WALGREN:   OKAY.   AND WE HAVE A DRAFT FOR COURT AND COUNSEL TODAY.   AND I CAN, I HAVE A LIST FOR DEFENSE COUNSEL OF THE MODIFICATIONS WE TOOK INTO ACCOUNT IN OUR DRAFT THAT THEY HAD SUGGESTED WHICH ALSO REFLECTS THE ONES WE DID NOT TAKE INTO ACCOUNT.   SO I HAVE THAT FOR THE COURT AND COUNSEL.

 

THE COURT:   HOW MANY PAGES?

MR. WALGREN:   32, YOUR HONOR.

 

THE COURT:   GETTING THERE.   I WANT A 2 IN FRONT OF WHATEVER FOLLOWS.   WOULD THE PEOPLE NEED TWO FULL DAYS TO PHOTOCOPY THE FINAL QUESTIONNAIRE?

 

MR. WALGREN:   I BELIEVE SO, YOUR HONOR.   I MEAN, IT MAY NOT TAKE THAT LONG, BUT I THINK WE NEED TO ALLOW FOR THAT.

 

THE COURT:   SO IF, I MEAN, IF WE FINALIZED IT TUESDAY, THE 6TH, BEFORE NOON, DO YOU THINK WE’D BE OKAY FOR THURSDAY, THE 8TH, AT 9:30, OR IS THAT PUSHING IT?

 

MR. WALGREN:   IF THE FINAL COPY WAS FINALIZED BY TUESDAY, THE 6TH?

 

THE COURT:   YEAH.

MR. WALGREN:   THE QUESTION IS, COULD WE HAVE IT?

 

THE COURT:   IN TIME FOR THE COMMENCEMENT OF JURY SELECTION THE EARLY MORNING OF THE 8TH?

 

MR. WALGREN:   YES.   AND WE WOULDN’T HAVE ALL OF THEM BY THEN, BUT WE WOULD HAVE ENOUGH FOR THAT DAY’S GROUP.

 

THE COURT:   MAYBE 80ISH, 100ISH, SOMETHING LIKE THAT.

MR. WALGREN:   SOMETHING LIKE THAT.

 

THE COURT:   I PROPOSE YOU THINK ABOUT IT A LITTLE FURTHER, AND THEN WE REGROUP TO DISCUSS THESE MATTERS BECAUSE I AM STILL WORKING ON THE FINAL VERSION, AND NOW THAT I HAVE SOMETHING ELSE, I WOULD LIKE TO DO THAT. ARE YOU OKAY WITH THAT, MR. CHERNOFF?

 

MR. CHERNOFF:   SURE.

THE COURT:   WHAT ELSE?   ANYTHING ELSE?

 

MR. WALGREN:   ARE WE GOING TO ALL — I ASSUME – SO THE COURT IS GOING TO REVIEW THE DEFENSE DRAFT, THE PEOPLE’S DRAFT, AND THE COURT’S DRAFT.   AND THEN I ASSUME WE ALL MEET.

 

THE COURT:   YES.   IT HAS TO BE CUT.   SO I REALIZE THAT COUNSEL ARE DOING A VERY GOOD JOB.   THEY WANT TO COVER EVERY CONCEIVABLE ISSUE.   BUT THERE ARE MATTERS THA GO TO BIAS AND THAT GO TO FOR CAUSE.   AND THOSE ARE OF PARAMOUNT INTEREST TO ME. COUNSEL MAY HAVE SOME VERY INTERESTING SUBJECT MATTERS THAT THEY MAY WANT TO ADDRESS BUT THEY NEED NOT BE CONTAINED IN A QUESTIONNAIRE.   THERE COMES A POINT OF DIMINISHING RETURNS.   AND THIS QUESTIONNAIRE IS A VERY COMPREHENSIVE QUESTIONNAIRE.   IT’S ALSO VERY LONG AND CAN BE VERY DIFFICULT AND FRUSTRATING FOR JURORS. SO I INTEND TO CUT IT WHILE AT THE SAME TIME PRESERVING YOUR RIGHT TO AN ADEQUATE VOIR DIRE. REMEMBER, YOU DO HAVE 20 MINUTES.

 

MR. CHERNOFF:   I WAS GOING TO ASK YOU THAT.   ARE YOU STILL THINKING ABOUT 45 MINUTES ON THAT?

 

THE COURT:   HOW MANY?

MR. CHERNOFF:   DID YOU SAY 45?

THE COURT:   OH, NO, I DIDN’T SAY THAT.

 

MR. CHERNOFF:   YOU DIDN’T.   I MUST HAVE DREAMT THAT. HOW MUCH TIME?

 

THE COURT:   JUST ABOUT 20.

MR. CHERNOFF:   20 MINUTES FOR VOIR DIRE?

 

THE COURT:   COUNSEL ARE HAVING ONE OF THE MOST COMPLETE, IF NOT THE MOST COMPLETE, QUESTIONNAIRE I HAVE EVER SEEN.   IT’S CERTAINLY THE MOST COMPLETE QUESTIONNAIRE I HAVE EVER SEEN.   IT MAY BE THE MOST COMPLETE QUESTIONNAIRE EVER, AND THERE ARE SO MANY SUBJECT AREAS COVERED.   YOU WILL KNOW FULLY WHAT THESE JURORS ARE THINKING AND THEIR MAKEUP. SO YES, I AM THINKING OF 20 MINUTES PER SIDE FOR YOUR INITIAL VOIR DIRE.   I AM GOING TO USE A 27 PACK HERE AS WE ORIGINALLY PROPOSED.

 

MR. WALGREN:   ONE POINT, YOUR HONOR, ON THE LENGTH OF THE QUESTIONNAIRE JUST SO THE COURT IS AWARE WHEN IT REVIEWS IT. WE HAVE GONE THROUGH AND INCREASED SPACING BETWEEN LINES BECAUSE WE FOUND JURORS DIDN’T HAVE ENOUGH ROOM TO WRITE.   I DON’T THINK THE NUMBERS OF QUESTIONS HAS CHANGED DRAMATICALLY.   WE TRIED TO MAKE IT MORE USER FRIENDLY.

 

THE COURT:   I APPRECIATE THAT.   THEN I WILL ADDRESS THE ISSUE OF USER FRIENDLINESS AND ALSO MARGINS.   I DON’T KNOW YOUR MARGINS.

 

MR. WALGREN:   NOR DO I.

 

THE COURT:   WELL, IF THERE IS ANY REASON TO COME BACK TOMORROW, THAT’S FINE WITH ME.   BUT I DON’T WANT TO JUST BURDEN YOU BY HAVING YOU TO COME BACK FOR THE SAKE OF COMING BACK.   I WANT TO ADDRESS ANY ISSUES WE CAN AFTER WE’VE THOUGHT ABOUT IT A LITTLE FURTHER. SO MY SUGGESTION IS TUESDAY, THE 6TH OF SEPTEMBER.   THAT’S THE DAY FOLLOWING THE LABOR DAY HOLIDAY.   WE ARE REALLY JAMMED HERE.   BUT OBVIOUSLY, THIS CASE IS READY TO GO WITH JURY SELECTION ON THE 8TH. SO THE 6TH OF SEPTEMBER, I’V ONE CAPITAL CASE AND MAYBE TWO.   IF YOU WANT TO COME IN A LITTLE LATER IN THE MORNING, THAT’S FINE.   I DON’T KNOW IF THERE IS GOING TO BE ANYTHING DRAMATIC OR NOT.   BUT I WANT  TO DO WHAT I CAN.   SO IT’S REALLY UP TO YOU, FOLKS.

 

MR. CHERNOFF:   SUGGEST LIKE 10:00 O’CLOCK IN THE MORNING, SOMETHING LIKE THAT?

 

THE COURT:   SURE.

MR. WALGREN?   MISS BRAZIL?

 

MR. WALGREN:   COURT FEELS COMING BACK ON THE 6TH WILL STILL ALLOW ENOUGH TIME TO GET IT BECAUSE THEN WE HAVE THE PHOTOCOPYING THAT —

 

THE COURT:   WELL, WHAT I WANT TO DO IS MAYBE COME BACK HALF AN HOUR EARLIER.   I WANT TO BE ABLE TO FINALIZE THAT QUESTIONNAIRE, AND YOU MAY OBJECT TO WHAT I AM GOING TO GIVE.   BUT SO BE IT.

 

MR. WALGREN:   THE 6TH WON’T REALLY BE A DIALOGUE. IT WILL BE THE COURT —

 

THE COURT:   WELL, IT WILL BE — NO.   IT WILL BE A DIALOGUE, YEAH.   IT WILL BE A DIALOGUE.   YOU WILL HAVE A CHANCE TO REVIEW YOUR MATERIALS.   IF YOU WANT TO SUBMIT OTHER MATERIALS TO ME BEFORE THEN, THAT’S FINE.   I WILL BE WORKING ON THEM DURING THIS INTERVENING TIME. BUT WHAT ABOUT 9:30 ON THE 6TH OF SEPTEMBER

TO DISCUSS THE FINAL QUESTIONNAIRE AND ALSO ANYTHING ELSE THAT MAY HAPPEN? PEOPLE, WHAT DO YOU THINK?

 

MR. WALGREN:   THAT’S FINE WITH THE PEOPLE.   WE ARE A LITTLE CONCERNED ABOUT HAVING AN OPPORTUNITY TO —

 

THE COURT:   HAVE A DIALOGUE?

 

MR. WALGREN:   YES. BUT IF THE COURT FEELS THAT WILL BE SUFFICIENT TIME, THERE ARE SOME PROPOSED QUESTIONS WE HAVE A REAL PROBLEM WITH.   BUT AS LONG AS WE HAVE AN OPPORTUNITY TO BE HEARD SHOULD IT BE NECESSARY ON THE 6TH, THEN.

 

THE COURT:   OKAY.   MR. CHERNOFF?   MR. FLANAGAN?

MR. CHERNOFF:   SURE.   9:30 IS FINE WITH ME.

MR. FLANAGAN:   FINE.

THE COURT:   WHAT’S THAT?   MR. FLANAGAN.

MR. FLANAGAN:   YEAH, I GUESS SO.

MR. CHERNOFF:   OKAY.   WE ARE ALL IN AGREEMENT.

 

THE COURT:   WELL, NOT ALL THAT ENTHUSIASTIC, BUT THAT IS OKAY. 9:30 A.M. ON THE 6TH OF SEPTEMBER 2011 FOR FURTHER PROCEEDINGS IN THIS CASE. IF THERE ARE REVISIONS, PROPOSALS, ET CETERA, CONTACT MRS. BENSON.   AND SHE CAN GET THE MATERIALS TO ME. ONCE AGAIN, THE PROPOSED QUESTIONS THAT ARE BEING FLOATED ARE BEING SEALED BECAUSE THEY ARE STILL A WORK IN PROGRESS.   THE FINAL QUESTIONNAIRE WILL BE MADE AVAILABLE. I BELIEVE I HEARD FROM THE PUBLIC INFORMATION OFFICER WAS SOME CONCERN ABOUT THAT.   AND MY EARLIER RULINGS REMAIN.   AND THAT IS THAT THE FINAL QUESTION, QUESTIONNAIRE WOULD BE MADE AVAILABLE AS A MATTER OF PUBLIC RECORD AS SOON AS THE FIRST JUROR IS ASKED QUESTIONS.   AND THAT GOES TO THE INDIVIDUAL JUROR QUESTIONNAIRES. ONCE WE HAVE COMPLETED THE SUBMISSION OF QUESTIONNAIRES THEMSELVES WHICH WILL EITHER BE ON THE 8TH, 9TH, OR 12TH, THEN A COPY OF THE BARE QUESTIONNAIRE WILL BE AVAILABLE TO THE PUBLIC.   SO ONCE AGAIN, THERE WILL BE TWO TYPES OF QUESTIONNAIRES THAT ARE GOING TO BE PROVIDED TO THE PUBLIC RECORD.

 

AFTER THE JURORS HAVE FILLED OUT THEIR QUESTIONNAIRES, THEN A COPY OF THE BLANK QUESTIONNAIRE WILL BE PROVIDED.   THEN WHEN WE BEGIN WITH JUROR SELECTION ON THE 23RD, AS SOON AS AN INDIVIDUAL JUROR IS QUESTIONED AND IF THAT JUROR IS ABLE TO REMAIN, THEN ONCE THAT JUROR IS ASKED QUESTIONS, THERE WILL BE A COPY OF THAT JUROR’S QUESTIONNAIRE PROVIDED TO THE PUBLIC ACCORDING TO EXISTING CASE LAW THAT I CITED A LONG TIME AGO. SO IF THERE ARE ANY QUESTIONS OR COMMENTS, THEY CAN BE DIRECTED TO PUBLIC INFORMATION.   BUT RIGHT NOW, WE HAVE GOT DRAFT QUESTIONNAIRES FLOATING AROUND. THEY ARE PRIVATE.   THEY ARE CONFIDENTIAL.   THEY ARE GOVERNED BY THE COURT’S PROTECTIVE ORDER.   THEY WILL NOT BE DISCLOSED OR DISSEMINATED OUTSIDE OF THE RESPECTIVE LEGAL TEAMS UNTIL OTHERWISE ORDERED. OKAY.   SEE YOU AT 9:30 A.M.   IN THE MEANTIME, HAPPY AND HEALTHY LABOR DAY. OKAY.   THANK YOU. AND DOCTOR MURRAY SHOULD BE HERE ON THE 6TH.

 

MR. CHERNOFF:   ON THE 6TH?

 

THE COURT:   YEAH.   I WANT TO SEE WHAT’S HAPPENING. SO PURSUANT TO 977, DOCTOR MURRAY IS ORDERED TO BE HERE ON THE 6TH AND ON DAYS THEREAFTER AS ORDERED BY THE COURT. BOND TO STAND. THANK YOU.

 

 (THE PROCEEDINGS RECESSED AT 2:51 P.M. UNTIL SEPTEMBER 6, 2011.)