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The Testimony of Michael Jackson's Former Attorney, Mark Geragos:
Why It Was Allowed to Happen, Why the Judge Was Irritated By It, and How It Undermined the DA's Conspiracy Case


Monday, May. 23, 2005

Why Was Geragos Allowed to Testify?

The attorney-client privilege, as readers will be aware, guards against the unauthorized dissemination of confidential communications between a client and his lawyer, during the course of the lawyer's representation of the client.

It thus serves to prevent attorneys from discussing - let alone openly testifying about - such communications. If an attorney tries to do so without a client's consent, he may be silenced or sanctioned by the court - or even worse, disbarred. If an opposing attorney tries to elicit such communications - during a deposition or at trial - the attorney may object, and the judge will typically uphold the objection.

The client holds the privilege. That means the client can force the attorney to testify, despite the privilege, even if the attorney would rather not do so, just as he can prevent the attorney from testifying even if he would prefer to do that. In legal parlance, this means the privilege is the client's to "waive" or "assert."

Here, Jackson agreed to waive the privilege - but it turned out he sought to grant only a partial waiver. In other words, Jackson wanted to allow Geragos to testify about some - but not all - of their communications.

California law permits this kind of partial waiver - and rightly so. Attorneys often represent clients for more than one case, and/or more than one purpose. It makes sense, then, to allow clients to divide up their waivers of privilege, rather than to have to find a new attorney every time they have a new issue to discuss in order to preserve their waiver rights.

Forcing a client to choose between total waiver and no waiver at all could, in some cases, be grossly unfair. Clients should not have to give up confidentiality on one issue, to waive it on another issue.

The Judge's Reaction to the Way the Partial Waiver Was Asserted Here

When Geragos began his testimony, he informed the court that he had been told that Jackson intended to waive his privilege. Geragos also noted that that the waiver had not formally been made on the record, nor had it been reduced to writing - but, he said, it would be.

To either put the waiver on the record, or memorialize it in writing (with a copy to the judge, and one to the defense) from the start would have been good practice: If Jackson one day were to claim that Geragos violated the privilege, the written or otherwise recorded waiver would be a defense to that charge. Also, it would have fully informed the judge of the extent of the waiver.

Recall that Geragos had represented Jackson from February 2003 until April 2004. Jackson, it turned out, wanted to waive the privilege only from February 2003 to his arrest date, about nine months later- not all the way through April 2004. That is, Jackson wanted to keep post-arrest-date confidential conversations off-limits, while opening up prior communications for Geragos to discuss. Again, this is clearly permitted under California law.

However, the limited scope of the waiver was not made clear during Jackson's direct examination, by his own attorney, Mesereau. Only when assistant prosecutor Ron Zonen began cross-examination, did the limited nature of Jackson's waiver become clear. That happened when Geragos (quite properly) refused to answer a question that went outside the scope of the waiver.

All this reportedly "irritated" Judge Melville. He halted Geragos's testimony, cleared the jury from the courtroom, and ordered each side to submit briefs as to the validity of the "partial" waiver.

In so doing, Judge Melville ignored an option that would have allowed him to avoid all this briefing: Because Mesereau's direct examination stayed within the strict time frame of the waiver, Judge Melville could have simply held that Zonen's questions were beyond the scope of the direct examination - as, indeed, they were. Cross-examination cannot go beyond the scope of direct examination, for its only purpose is to try to raise questions about direct examination. If an attorney feels he has not gotten - or cannot get - far enough in cross-examination with a given witness, he is always free to call that witness to the stand himself, for direct examination. And if the witness is "hostile," he will get particular leeway on direct examination.

After briefing, Judge Melville said that he believed lead defense attorney Thomas Mesereau Jr. had misrepresented the waiver; that he felt "deceived"; and that he had even considered "sanctions of some sort" against Mesereau. (The possibility of sanctions remains open, even now).

Nevertheless, Melville permitted Geragos to continue to testify under the qualified waiver, despite prosecutors' protests. At the same time, Melville forced Geragos to assert the attorney-client privilege after each and every question he refused to answer. That elicited quizzical sneers from the jury - meaning that, unfortunately, Melville's irritation at Mesereau, so far, may have ended up hurting only Jackson.

The more appropriate course would have been to limit the prosecutor's questions to the relevant time period, and uphold a general defense objection - asserted just once - to questions ranging outside that period.

Judge Melville's forcing Geragos to repeatedly object based on attorney-client privilege not only punished the client, Jackson, unfairly, it also represented a double standard within the trial. When the accuser's mother asserted her Fifth Amendment right against self-incrimination when she was cross-examined as to whether she committed welfare fraud, the judge did not make her assert it over and over again - as Geragos had been forced to. After she once asserted the privilege, the judge made sure defense questions were off limits.

The same approach should have been taken with Geragos: Once he objected based on the limited waiver of the privilege, the judge should have made sure the prosecutors stayed within the bounds of the waiver.

Did Geragos's Testimony End the Prosecutors' Conspiracy Case?

After all of these procedural gyrations, the substance of Geragos's testimony proved a boon to the defense. In particular, it may well have been the last nail in the coffin for the conspiracy charges in this case.

These charges have been much less publicized that the charges that Jackson molested the accuser, a then-twelve-year-old cancer patient. They are based on allegations that Jackson and five "unindicted co-conspirators" together agreed to hold the boy and his family captive at Neverland.

According to prosecutors, the reason for this conspiracy was to force the boy and his family to participate in a video designed to undue the damage caused by the pop star's unflattering portrayal in the Martin Bashir documentary. In the now-infamous documentary, "Living with Michael Jackson," Jackson admitted to sharing the same bed with children - an admission that has been used against him in the molestation case.

By the time Geragos testified, the prosecution's conspiracy case had already been greatly weakened. The defense had established that when the accuser's mother claimed she was "falsely imprisoned" on Neverland's sprawling grounds, she managed to get her nails done, visit the dentist, and enjoy a "full body wax" off the estate. She did, complain, however, that she was being "followed" and surveilled. Until Geragos took the stand, the defense had not yet rebutted this testimony.

Geragos's testimony weakened the case for the conspiracy even further. It suggested there was no such conspiracy by Jackson. Indeed, it suggested that if any conspiracy was brewing, it was among members of the accuser's family, and its purpose was to "shake down" Jackson!

Geragos recounted learning that the accuser's mother had alleged sexual abuse against retail giant J.C. Penney, winning a large damage award, and observing that she insisted her children call Jackson "Daddy" - even though Jackson expressed discomfort about this. Based on information such as this, Geragos testified, he began to fear that his client was about to become a target.

So he hired private investigator Bradley Miller to keep tabs on the accuser and his family. No wonder, then, that the accuser's mother testified to "being followed" and surveilled; it was happening. But its purpose was legitimate - to prevent Jackson from being victimized - not conspiratorial (i.e. to prevent her from leaving the estate.)

Only after the accuser's mother realized she was being followed, did she leave the estate (interestingly, no one stopped her from leaving). Only then, did she make her claims of a conspiracy by Jackson.

My take? She knew the jig was up - and looked for a new method to profit from Jackson.

A Spill-Over Effect: Why Weakening the Conspiracy Claims Weakens the Molestation Claims Too

Not only did Geragos's testimony make short work of the conspiracy charges, it may have raised even more reasonable doubt on the molestation charges.

The arguably credible evidence in favor of these charges boils down to the testimony of two witnesses; the accuser and his younger brother. That's because the other witnesses who testified to molestation tended, as Mesereau has noted, to self-destruct on cross-examination.

The accuser's mother's testimony was a disaster. (How much reliance could a jury ever put on the testimony of someone who had to take the Fifth Amendment?) And even apart from this issue, the mother was not credible.

Meanwhile, none of the various Jackson employees who claimed molestation provided credible, compelling testimony, free of financial self-interest. Worse, some were clearly Jackson's enemies for reasons having nothing to with alleged molestation. And others claimed molestation of victims who later either swore, testifying for the defense, that they had never been molested or failed to show up at court.

So the molestation case comes down to this: Will the jury put all the adults' disagreements' aside, and believe these two kids?

There is, at this point, plenty of reason for them not to. After all, if this family was plotting to "shake down" the pop star, the kids' credibility is all but shot.

Of course, it's highly unlikely that the jury will find the children masterminded such an elaborate plan. But they may well find that the kids' influential mother roped them into it. After all, they and their sister have admitted lying before, to say what they thought their mother, or authority figures, wanted to hear.

The outcome? Absent a rabbit in the prosecution's hat, I predict Michael Jackson will be acquitted of all charges. Not only that, he may emerge with what all those who are criminally accused hope for: Vindication.

Vindication rarely comes from a not guilty verdict alone. But when a prosecution case is a debacle, as this one is, the defendant's victory can, indeed, seem to be vindication as well. If Jackson is acquitted, it won't be because the prosecution failed by a hair's breadth; it will be because the prosecution failed by a mile.

Jonna M. Spilbor is a frequent guest commentator on Court-TV and other television news networks, where she has covered many of the nation's high-profile criminal trials. In the courtroom, she has handled hundreds of cases as a criminal defense attorney, and also served in the San Diego City Attorney's Office, Criminal Division, and the Office of the United States Attorney in the Drug Task Force and Appellate units. In 1998, she earned certification as a Court Appointed Special Advocate with the San Diego Juvenile Court. She is a graduate of Thomas Jefferson School of Law, where she was a member of the Law Review.

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