The Michael Jackson Case:
The Effect of the New Charge, and New Attorney, And What Jackson's Best Defense May Be

Michael Jackson's appearance isn't the only thing changing shape these days. His criminal case just underwent a radical facelift. Jackson has famously fired two of his lawyers -- replacing them with his current counsel, Tom Mesereau. Jackson also faces a new, unexpected criminal charge.

On January 5, Jackson -- who had been arrested in November 2003 -- was formally arraigned on a criminal complaint. Then, in mid-April, a two-week long, secret grand jury investigation ended with the return of a ten-count indictment. The indictment charges the King of Pop not only with multiple counts of "lewd acts against a child," as expected, but also with a surprising new charge: conspiracy. Jackson has pleaded not guilty to all counts.

In this column, I will explore a series of related questions: What is the significance of prosecutors' decision to opt for an indictment, rather than a complaint? What effect will the new conspiracy charge in the indictment have? And, what might be Jackson's best defense strategy for winning the case?

First, let's consider the decision to opt for a grand jury indictment. In California, prosecutors may initiate a criminal action either by filing a complaint, or by obtaining a grand jury indictment. But the overwhelming majority of felony cases in California are done by complaint. (In contrast, federal courts and many other states utilize grand jury practice almost exclusively).

Originally, the Jackson case proceeded on a complaint. But then D.A. Sneddon changed tactics. Why? Probably because under California law, once a grand jury indictment is filed, as is the case here, the defendant loses his right to a preliminary hearing.

Under California Penal Code § 859, once a felony complaint is filed, "both the defendant and the people have the right to a preliminary examination...within ten court days of the date the defendant is arraigned."

Among those who have taken -- or who plan to take -- advantage of this right are O.J. Simpson, Robert Blake, Scott Peterson, Phil Specter; and Courtney Love. So do many non-celebrity defendants.

Why is the right to a preliminary hearing valuable to the defendant? Technically, a preliminary hearing is meant to satisfy the judge that there is enough evidence for the prosecution to go forward. But in practice, its import is quite different.

Generally speaking, a preliminary hearing forces the prosecution to present the basis of its case on the record -- and therefore allows the defense to better prepare itself for trial.

Moreover, the preliminary examination is an opportunity for the defense to set its own stage. Specifically, the defense can present affirmative defenses; try to negate an element of an offense; and try to impeach prosecution witnesses.

What might the Jackson preliminary hearing have looked like? It probably would have focused on impeaching the testimony of the alleged victim.

But now, Jackson has lost that opportunity, due to the D.A.'s switch-a-roo. While it is technically legal, this switch is unfair. As noted above, as soon as the complaint was filed, Jackson gained a right to a preliminary hearing. Now the prosecutors have defeated the very right they themselves triggered -- and apparently, they've done so simply to put the defendant at a tactical disadvantage.

Even if the law allows them to have their cake and eat it too this way, that doesn't mean it's right. The prosecution took advantage of all the negative publicity their complaint engendered. Now its trying to magnify that advantage with the negative publicity the indictment is causing. And meanwhile, the only real chance Jackson had to combat that publicity -- at the preliminary hearing -- has been ripped out from underneath him.

Having considered why the indictment was filed, let's now compare the indictment to the complaint.

First, the alleged victim is the same -- and no other alleged victims are mentioned. Despite publicity suggesting there may be other accusers, the indictment does not reference them.

Second, the basic charges as to what was allegedly done to the accuser victim are the same -- though the number of counts has changed.

The complaint alleged seven counts of Lewd Act Upon a Child; the indictment alleges four, plus one count of Attempted Lewd Act Upon a Child. (This count describes Jackson allegedly having a child perform such an act upon him.) So what happened to the two missing lewd acts -- and why wasn't the attempt described as such in the first place?

The complaint alleged two counts of Administration of an Intoxicating Agent; the indictment alleges four. What does this mean -- that between the complaint and the indictment, the accuser remembered two more instances in which Jackson supposedly gave him intoxicating substances? If so, what possible explanations are there for his renewed memory?

Unlike fine wine, memories generally do not get better with the passage of time. Instead, typically, they fade. When a witness' memory of an event sharpens over time, this is a phenomenon that mustn't be ignored by either side -- prosecution or defense.

Weirdly, the dates have changed too. The complaint said that five of the seven "lewd acts" allegedly occurred "on or between February 7, 2003 and March 10, 2003," and all the other counts occurred between February 20 and March 10, 2003. But the indictment says that all but the new conspiracy charge (which I will discuss next) occurred between February 20, 2003 and March 12, 2003.

Note that this isn't just narrowing the time period -- it's also lengthening it! Suddenly something happened on March 12 that was not included in the complaint. But why not?

Either the accuser was confused or had memory problems, or the prosecution bungled its complaint, or the grand jury refused to indict on some charges, and corrected the dates on others -- or all of the above. Any way you slice it, it's not good for the prosecution.

The original charges -- the backbone of this case -- were the product of months of investigation. For this reason, the grand jury indictment not to match the complaint, is curious at best, and at worst, potentially disastrous for the prosecution.

Then there is the new charge: a single count of Conspiracy, alleged to have occurred between February 1^st and March 31^st, 2003.

The indictment lists three ominous-sounding objects of the alleged conspiracy: Child Abduction, False Imprisonment, and Extortion. (In the law, "false imprisonment" is essentially keeping someone a prisoner on the premises.)

Not only is this charge new, it is the top charge in the indictment -- the one that exposes Jackson to the greatest prison term if convicted. Thus, it deserves careful scrutiny.

Unfortunately, even defense counsel will not have access to the sealed specifics of the charge until May 3, and the rest of us will be denied access until the court rules otherwise.

The result is that the 28 "overt acts" alleged in the indictment remain unknown -- a crucial omission, as a conspiracy, by law, requires not only an agreement but also an overt act committed in furtherance of the conspiracy. In other words, it can't be just thought; it must, at some point, be proved to have resulted in an action or actions. But the indictment never answers this question: What were those actions?

Even this limited description of the conspiracy count raises some potential problems with this charge. At least two people must participate in a conspiracy, by law. A conspiracy is essentially a criminal agreement, and it takes two to agree. Yet no co-conspirators are named.

Also, if there truly were conspirators in the alleged abuse of a child, why have they too not been charged? Perhaps they are negotiating pleas to charges that, thus far, the prosecutor has only been able to threaten, in exchange for their cooperation.

If plea negotiations are indeed ongoing, then the conspiracy charge may be even more troubling than it looks. It may well have been added on not to terrify Jackson with an even longer prison sentence, but to terrify those they believe may be co-conspirators with similarly lengthy sentences. These persons are likely members of the Jackson entourage, especially those who worked at Neverland.

Conspirators can be sentenced for each other's actions as if they themselves committed the target offense personally - even if "all" certain participants did was "conspire" to commit a target offense, but not actually get their hands dirty, so to speak. Under California law, any alleged co-conspirators could be facing as long a sentence as Jackson faces.

Prosecutors may have added the conspiracy charge simply to gain greater leverage, or garner certain evidence it so far lacks.

After all, the idea that a group of people agreed Jackson would molest children seems very unlikely. More likely, if the molestation allegations are true, would be aiding and abetting

-- not conspiracy -- by members the entourage. But to charge aiding and abetting would require naming names; adding a conspiracy charge so far has not.

Again, while it may (or may not) be legal for an indictment to have so many crucial gaps, it's not the right thing to do to allow those gaps to stand. Defendants need to know who they supposedly conspired with, and what they supposedly conspired to do -- and to know it when the indictment is issued, not later.

Meanwhile, another potential problem with the conspiracy is indicated by the fact that the conspiracy count is written like a multiple-choice quiz. Typically, a prosecutor who believed a conspiracy had these objects might charge them this way: one count of "Conspiracy to Commit Child Abduction," one count of "Conspiracy to Commit False Imprisonment," and one count of "Conspiracy to Commit Extortion."

Charging a single count but including three possible objectives may suggest that the prosecutor's knowledge of the conspiracy is limited, and that he is hoping the evidence will support at least one of these alleged objects.

But if the co-conspirators are going to be witnesses -- which would probably be necessary to prove a conspiracy -- then shouldn't the prosecutor know all about the conspiracy?

Stranger still, is that Jackson has not been indicted on the actual objects of the conspiracy itself. In other words, the crimes of Child Abduction, False Imprisonment and Extortion are not charged as stand-alone crimes -- nor are they even charged as attempted crimes.

What is really going on here? Perhaps the missing charges mean the grand jury refused to indict despite the evidence presented. Or, perhaps prosecutors were not able to present the grand jury with evidence to support the missing charges -- because supposed co-conspirators in Jackson's entourage would not, or did not, testify against him. Perhaps no such evidence exists, and the entourage is telling the truth after all.

Obviously, all these issues surrounding the indictment may end up boosting the defense.

Another strong argument on the part of the defense was made by Jackson's former defense team, Mark Geragos and Ben Brafman, and probably will be pursued by Jackson's current attorney.

In essence, defense counsel contended that the over-the-top security measures employed by the prosecution, in an effort to keep the grand jury proceedings under wraps, may have intimidated witnesses and grand jurors. In a prior argument, Geragos urged, "If you believe what is reported, we've got people covered up, wrapped in blankets, put into vans driven around like they're Osama bin Laden's lieutenants and put into a training facility, then admonished in the procedure and then spirited out into the afternoon sun."

The defense may also make points by emphasizing evidence of D.A. Sneddon's vendetta against Jackson. As discussed by Julie Hilden in a prior column, there is copious evidence of this vendetta, and a good argument that the jury should hear it.

Alternatively, the defense could try to convince the judge to dismiss the indictment based on this vendetta, or at least to force Sneddon to be recused -- or, indeed, to disqualify the entire Santa Barbara District Attorney's office -- from the case. Sneddon's unusual decision to take Jackson's right to a preliminary hearing away by indicting after first filing a complaint, will add support to such a motion.

Under California Penal Code § 1424, a criminal action, the defense may move to recuse (also called disqualify) the prosecutor when there is a "conflict of interest" that is likely to prevent the defendant from receiving a fair trial. The motion may be directed to an individual prosecutor, or to the entire prosecutor's office in the county in which the action has been brought.

To prevail, the defendant must demonstrate a reasonable possibility that the D.A. (or D.A.'s office) is not exercising its discretion against him in an evenhanded manner. If the court is persuaded that the district attorney's office has employed its discretionary powers to deprive the defendant of a fair trial, the motion may be granted.

Jackson's best tactic is probably just to move to recuse Sneddon -- for several reasons. First, even if the motion doesn't succeed, it's worth alerting the judge to all of Sneddon's behavior; this way, the judge may be all the more vigilant to protect Jackson's rights as the case proceeds to trial.

Second, recusing the office is not only unlikely, but could be detrimental. The case would then be placed either with the office of the California Attorney General, or a special prosecutor. Some of you may recall California Attorney General Bill Lockyer himself making inappropriate comments in April of last year when the Scott Peterson case finally broke.

It was Mr. Lockyer who took to a public microphone and referred to the case against Scott Peterson as a "slam dunk" -- this within hours of his arrest.

Although the district attorney in this case has been battle-ready for some time, I have a feeling Michael Jackson has only just begun to fight.