Why the Michael Jackson Case Is Falling Apart, How the Prosecution Began Poorly , And What the Defense Ought to Do Next

By JULIE HILDEN


julhil@aol.com
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Tuesday, Mar. 15, 2005

A recent series of setbacks for prosecutors in the Michael Jackson child molestation prosecution may have made the case unwinnable. Cross-examination by Jackson's skilled defense attorney Tom Mesereau has been devastating.

The accuser - like his brother and sister before him - has proven vulnerable to charges that he told different stories at different times. For instance, the accuser admitted that he told a concerned school official that Jackson "did nothing" to him sexually, and he has also admitted lying repeatedly in the "rebuttal video" to Martin Bashir's documentary about Jackson.

As I discussed in a prior column, prosecutor Tom Sneddon has exhibited inappropriate bias against Jackson on several occasions. This bias may have affected his ability to understand the weaknesses in his case.

But was there a way this case could have been better presented - by a different prosecutor who had a more objective view as to its merits and vulnerabilities? I believe so - and in this column, I will explain why and how. Even better presented, however, this case still might have been a loser for the prosecution.

I'll also consider what the consequences of Mesereau's success in cross-examination ought to be for the defense's tactics in the remainder of the trial.

A Better Prosecution Strategy: "Putting the Turd on the Mantel"

So far, the Jackson prosecution has been treating this difficult case as if it's a slam‑dunk. That's been a terrible - probably, a fatal - mistake.

If it wanted to have a better chance of winning, the prosecution should have adopted a strategy that lawyers have nicknamed "putting the turd on the mantel." Under this strategy, the lawyer takes an honest look at the worst facets of his case - the ones the defense will zero in on.

Then, the lawyer takes these bad facts and is entirely candid with the jury about them, in his opening. His opening explains why, despite these facts, he believes he still has a strong case.

Jurors are often very smart - as lawyers too often forget. Whether they are "book smart" or "street smart," they have a way of poking holes in even the most seemingly airtight case - whether it's the prosecution's or the defense's. And jury deliberations - the result of twelve diverse minds focused on a single issue - are typically even smarter than the individual jurors themselves.

So if a prosecutor doesn't give jurors a realistic preview of the case in his opening, they will likely distrust him when they later begin deliberations. Why shouldn't they? He has already misled them once, in his opening, at least by omission. And worse, he misled them when they were in a comparatively vulnerable position; he knew more than they did, and they were apt to believe his deception (or not to notice his omissions).

After the evidence has been presented, and the jurors know as much as the prosecutor does, they won't make the mistake of trusting him again if his opening was not reliable. His closing won't exactly fall on deaf ears - but it will be greeted with a healthy dose of skepticism. And in deliberations, the prosecutor's version of events may be given short shrift, while the defense's version still rings in jurors' ears.

Jurors do focus in on evidence, but lawyers have the opportunity to give them a credible organizing framework for all of the evidence they've heard. This, Sneddon so far has failed to do. He lost credibility with jurors when he didn't have to, and opened the way for Mesereau to score devastating points against him.

The Problem with Sneddon's Opening: Failing to "Put the Turd on the Mantel"

Granted, in his opening, Sneddon did acknowledge some of the failings of his case. But he did so only in minor ways. And he continued to paint the accuser's mother as an innocent figure, when the evidence strongly suggests she has a dishonorable agenda. He also failed to explain why - given the accuser and his siblings admitted lying in the past - the jury could trust their testimony now.

Sneddon acknowledged that the jury might think the accuser and his family were out for money, but his reply to that suspicion was weak. In particular, he claimed that "[The accuser's mother] never talked about suing Michael Jackson." And he added that "she will tell you today on the witness stand here … that she wants not one penny from the defendant in this case. She will tell you, 'I do not want the devil's money.'"

But how credible is this? Without a legally binding waiver of claims against Jackson, if Jackson is convicted, the accuser's family can still turn around and use that conviction, in a civil suit, to try to get millions from Jackson. Once a case has been proven beyond a reasonable doubt, it's a snap to prove it by a "preponderance of the evidence" - the applicable standard in a civil case.

Moreover, even if Jackson is not convicted, a civil suit can still follow. And a jury - especially this California jury -- is apt to be very aware of this fact: After the O.J. Simpson criminal prosecution failed, the successful O.J. Simpson civil suit made headlines, too. Thus, the Jackson jury may well realize that whatever the accuser's mother says on the stand, she still has the option of going after Jackson with a multimillion dollar civil suit later - and they may see that she hasn't been shy about going after celebrities' money so far.

If Sneddon had showed the jury a binding agreement on the part of the accuser's family not to file a civil suit against Jackson, then - and only then -- his claim that the boy's mother "wants not one penny" might have been credible. Without that, such a claim is specious.

If this prosecution fails, the accuser's mother may change her mind and decide she does want the "devil's money" after all. (I hear it's still legal tender.) She may pursue a civil suit for her own financial gain, or because she sees it as the only means of punishing Jackson if imprisonment isn't an option - a means that, coincidentally, would still hold out a monetary reward for her. And if she does initiate a suit, there's nothing to stop her from pursuing it all the way to judgment.

Defense attorney Mesereau's opening made clear a brutal reality: Strong evidence shows that the accuser's mother is a con artist, and she's not afraid to use her children in the service of her cons.

Mesereau pointed to a large settlement the mother had received from J.C. Penney in a suit in which, he said, she'd admitted she had lied. Mesereau also explained how, according to comedian and talk show host Jay Leno, the accuser's family had tried to seek money from him, and he'd felt that "'Something was wrong. They were looking for a mark. It sounded scripted."

In addition, Mesereau noted that comedian George Lopez "was asked for money. He didn't want to give money, and then [the family] accused him of stealing $300 from [the boy's] wallet."

Mesereau went on to give more examples, saying that celebrities ranging from boxer Mike Tyson to actors Jim Carrey, Adam Sandler, and Chris Tucker were targeted by the accuser's mother.

Unlike Sneddon, Mesereau retained his credibility throughout his opening. Jurors doubtless believed his promise to show evidence of a whole chain of attempted celebrity scams by the accuser's mother. After all, what lawyer would make such a promise if he couldn't keep it? Jurors will be looking to see these celebrities on the stand. Mesereau will likely subpoena them.

The Opening Sneddon Should Have Given: Defending the Boy, Not the Mother

How could Sneddon's opening have been improved? For one thing, he could have "drawn the sting" of his case's weaknesses by preparing the jury for the evidence Mesereau was about to cite. Instead, he allowed Mesereau to fill the jury in on facts Sneddon chose to ignore.

By sticking to favorable evidence, Sneddon opened the way for Mesereau to provide the jury's first in-depth introduction to the chain of attempted celebrity scams. Because Sneddon wouldn't "put the turd on the mantel," Mesereau was able to - and it was devastating.

But the problems with Sneddon's opening go deeper - and they are rooted in the problem with his entire approach to the case.

In some cases, prosecutors must vouch for the testimony of unappetizing witnesses because they have no choice: In a criminal conspiracy, for instance, "big fish" sometimes can't be convicted without the testimony of "little fish" - testimony that has been induced by a favorable plea agreement, or even full immunity from prosecution.

But this was not that kind of a case: Sneddon did not have to vouch for the truthfulness of the accuser's mother in his opening. He had other witnesses: The accuser and his siblings, who were far more sympathetic by virtue of their youth, and by virtue of the influence their apparently unscrupulous parents had over them.

Sneddon should have assumed that the jury would deem the accuser's mother a liar and discount her testimony. Accordingly, he should have implored the jury to leave the unreliable, unethical mother out of the case, and listen to the kids.

He could also have explained the kid's past lies by arguing that they had been prompted by their mother; now, less under their mother's shadow, he could have contended, the kids finally felt free to tell the truth.

While they might have lied in the past - in the J.C. Penney cases and the civil suit involving their father - they are now older, more independent, and no longer as much under their mother's corrupting influence.

Is there an explanation that would suggest Jackson is guilty, yet account for all the evidence in the case - including evidence of the mother's and the children's past lies and attempted cons? I think so.

Here it is: The accuser's mother was either simply trying to get money out of Jackson, or else specifically setting Jackson up for a scam based on false claims that he molested the accuser. She knew these claims would be credible because of a past molestation settlement Jackson had agreed to; because of Jackson's famously odd behavior toward his own children; and, ultimately, because of Jackson's admitted practice of sleeping in the same bed with little boys.

For the scam to work, the mother knew she had to let her children spend time alone with Jackson in his bedroom - and she did so. But when they did, they really were molested. Maybe she anticipated that would happen; maybe she didn't.

If Sneddon had told this story - not a story suggesting the mother is now an angelic truth-teller, and Jackson is the devil - I think the jury might have believed him.

The question Sneddon could have posed is this one: Should the accuser suffer for his mother's sins? If she was a con artist, but the accuser really was molested, should he be denied justice because she's a con artist?

Mesereau's Adept Cross-Examination Blew Further Holes in Sneddon's Case

After gaining a significant advantage from his opening, Mesereau extended it through cross-examination.

First, the accuser's older sister admitted to filing a false police report - and, more generally, to lying when she thought the circumstances required it. Mesereau asked: "So you'd lie about certain things and tell the truth about certain things, depending on what you are asked, right?" She replied, "Yeah."

So much for any weight that might have been given to her testimony. What might have been corroborative evidence, ended up undermining the prosecution case.

Then the accuser's brother admitted he'd lied in a case involving their father, and couldn't "remember" if he'd been told to lie in the J.C. Penney case. (He also contradicted himself on the stand about the details of an incident in which he says he walked in on Jackson groping his brother, but I think this contradiction is less damaging: Jurors can be forgiving in their assessment of contradictions in a memory of an incident that occurred when the witness was a child, and would have been extremely traumatic if it occurred.)

Most recently, the accuser himself testified - and here, too, Mesereau's cross-examination has been effective. As noted above, all three siblings have been caught in multiple lies during cross-examination.

What Kind of Case Should the Defense Now Present?

Because Sneddon adopted a strategy that does not account for all the evidence, he is probably sunk; the jury is unlikely to convict Jackson, except perhaps for providing alcohol to minors.

Given this reality, what should Mesereau do when the prosecution rests and the defense begins its case. Should Jackson testify? Should the defense put on only a brief case, or should it call a full panoply of witnesses in his favor?

As I explained in a prior column in the Scott Peterson case, I think criminal defendants - particularly those who, like Peterson and Jackson, have no prior records - generally ought to take the stand.

Why? The reason is simple: Juries want to hear from defendants, and juries inevitably distrust them if they do not take the stand in their own defense. Only showstopping side-issues - such as the racism, DNA evidence, and non-fitting gloves issues in the O.J. Simpson case - can ensure an acquittal when the defendant fails to testify. Look at the Peterson case: It was widely opined that the prosecution's case was weak. Yet Peterson - who did not testify - was still convicted and, indeed, sentenced to death.

There are no showstopping side-issues yet in the Jackson case - nor do I expect any. Sneddon seems to have a personal vendetta against Jackson, but it does not seem to be race-based. Nor will a debate about the reliability of DNA evidence likely arise here: The accuser's DNA was, reportedly, not found in Jackson's bedroom. (That's a big factor in favor of the defense's version of events - but not a slam-dunk, since any semen might have ended up on clothes, or been Jackson's own.)

So this trial isn't going to be about whether Sneddon is racist, or whether DNA evidence is reliable. It's going to be about a single issue: Did Jackson molest the accuser? That suggests Jackson must testify on this issue, or potentially be punished by the jury for his silence.

There are many other reasons, too, that Jackson ought to testify. First, Jackson's decision to give an interview to the very sympathetic Geraldo Rivera will make it look very strange if he does not testify in a less sympathetic forum. (The jury may or may not be aware of the interview, and will certainly have been instructed to stay away from press about the case; with a high-profile case like this, however, that injunction often proves hard to follow.)

Second, Mesereau has suggested (though not stated outright) to the jury that Jackson will take the stand - he'll want to keep that implicit promise. Third, to prove its "series of scams" theory, the defense will have to call a parade of celebrities to the stand. It will appear very suspicious if Jackson is not among them.

But on the other hand, there are serious risks in putting Jackson on the stand. For one thing, he's probably got to admit what the evidence strongly suggests: As the indictment alleges, he gave minors alcohol. It seems that flight attendants who have no reason to lie can provide details about Jackson's practice of hiding alcohol in Diet Coke cans, which seems suspicious. Perhaps one of them also witnessed Jackson sneaking alcohol to a minor. If one of them will testify to this, then Jackson must admit it on the stand.

I don't think that admission will be fatal to his case; it certainly won't be good, but it won't be fatal. For one thing, the accuser and his sister both say that she was given alcohol, too, and no one has suggested Jackson molested girls. In addition, it wasn't just the kids' alcohol that was hidden in Diet Coke cans; Jackson apparently hid his own alcohol that way, too.

Another disadvantage of putting Jackson on the stand is that it will likely give the prosecution another chance to trot out the Martin Bashir documentary in which Jackson discusses sleeping in the same bed as minors.

This time, the documentary - already shown to jurors in its entirety - would provide fodder for embarrassing cross-examination of Jackson, whom Sneddon could ask: "How many times?" "Which children?" "How old?" "You thought there was nothing wrong with this?"

Quizzed on details, Jackson could easily get rattled and seem to jurors to be hiding bad conduct.

The Advantage of Putting Jackson on the Stand

One strong advantage of putting Jackson on the stand is that he is soft-spoken and gentle, and his testimony will underline that point. Of course, abusers can be soft-spoken and gentle, too, but Jackson's gentleness nevertheless will undercut the prosecution's claims of coercion. Jackson is also credible in his explanation of his wanting Neverland to serve as a refuge for disadvantaged children, thousands of whom have visited over the years.

In contrast, any suggestion by the prosecution that Neverland is merely a "honey trap" to facilitate molestation is not credible. If this is a "honey trap," it's the most elaborate one ever devised. It's possible that if Jackson is a molester, he created Neverland with a subconscious hope that it would aid his molesting. It is not credible, as the prosecution may suggest, that this is Neverland's very purpose.

The evidence doesn't lie: The accuser's mother is far from wholly good, and Michael Jackson is far from wholly bad. It's possible he's an abuser who also genuinely cares about children. It's possible she tried to scam Jackson, yet was shocked to find her children really had become the victims she intended to claim they were.

It's the prosecution's failure to acknowledge these more complex scenarios, even though the evidence invites them, that may very well result in its losing this case - one way or another.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden also has experience in criminal motions and appeals. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes MP3 and text downloads of the novel's first chapter.

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