By Nicholas Stix
June 5, 2005
A Different Drummer
I do not envy the jurors deciding the Michael Jackson trial. These twelve citizens have begun deliberating, in order to come up with a verdict on each of ten counts, ranging from conspiracy (to abduct a child) to four felony alcohol counts to attempting to commit a lewd act to four counts of molestation. Jackson is alleged to have committed the crimes in question against a then-13-year-old cancer survivor. From all the charges and counter-charges in the testimony, not to mention Jackson’s own bizarre behavior, three things jump out at me.
A Judicial Vicious Circle
1. According to the California Evidence Code §1108, enacted in 1995, testimony can be given charging a defendant with “prior bad acts” for which he has been neither convicted nor prosecuted, if such testimony helps establish a “pattern” or “propensity” to commit the crime with which he is presently being charged.
This law guts the presumption of innocence, which is perhaps THE foundation of American criminal law.
In practice, this means that if you hate somebody, and find out that he has been charged with a crime, you can announce that he has previously committed a similar crime against your person, and testify against him in his current trial for the previous “crime.” It’s legal double freebie. You get to testify to the jury, as if the defendant had already been convicted of an earlier crime, AND get to prejudice the jury regarding the crime he is currently charged with. (This is exactly what some women sought to do during the 1991 trial of Kennedy scion William Kennedy Smith, whom Patricia Bowman had charged with rape. Smith was acquitted.)
And that is what has happened in the Michael Jackson trial, though Jackson’s million-dollar defense team was able to come up with witnesses who contradicted the charges of prior bad acts, regarding the attempted commission of lewd acts. Imagine the fate of defendants who can’t afford superstar defense counsel.
Such testimony, when permitted, is usually subject to serious limitations, because it is so prejudicial. As CNN legal analyst Jonna M. Spilbor has noted, California law once had such limitations, but they were thrown out the window when California Evidence Code §1108 was enacted.
Judge Rodney Melville, presiding in the Jackson case, is Exhibit B as to why such testimony should not be permitted, and why California Evidence Code §1108 must be repealed. The judge has not only permitted such testimony, he has permitted it predominantly from people who do not even claim to be victims of Jackson, but rather to have witnessed Jackson committing such crimes against others.
Prosecutor Tom Sneddon is Exhibit A: If he had a strong case, why would he feel the need to exploit a bad procedural law?
The justification for permitting such testimony is circular. It goes to showing a “pattern,” but you can only show a pattern after you have convicted the defendant INDEPENDENT of the (supposedly) older allegations.
In other words, only if witnesses accusing Jackson of similar crimes in the past had NOT been permitted to testify, and Jackson were convicted based solely on the merits of the present case, could one THEN go back and see that prior allegations against Jackson taken together with his crime, formed a pattern. And yet, you still wouldn’t know if the allegations of prior crimes were true. But to seek to show a pattern prior to a conviction, is putting the cart before the horse.
Each criminal allegation must be put to the test of a trial. Without that test, allegations as to prior bad acts function as legally sanctioned character assassination.
To get an idea of how prejudicial the law’s effects can be, Charles Montaldo, the “guide” for law at the popular liberal Web site, about.com, assumed that Jackson was guilty of serial pedophilia:
After a heated hearing on the motion by the prosecution, Judge Melville ruled that testimony about previous sexual offenses and a pattern of "grooming" young boys for molestation would be allowed, but rather than allowing evidence about seven previous Jackson victims, he allowed only five.Montaldo should have said “seven alleged …”
‘Alright,’ you may say, ‘But Montaldo is a blogger. So, how are the Solons doing?’
In some states, testimony as to prior bad acts is considered to have what the law calls “probative value,” regarding a charge of molestation within an ongoing relationship.
Michigan case law has long recognized that, in cases where sexual misconduct by one family member upon another is charged, other acts testimony is highly probative because such misconduct is unlikely to occur between family members as a single, isolated event. Forcing the victim to testify about the charged act apart from its context may unfairly make the victim's testimony appear incredible.Note, however, how even the Michigan court’s language presupposes that the plaintiff in any given case is indeed the victim of a crime. And in a “he said-she said scenario,” I fail to see how the Michigan decision overcomes the circularity problem. The plaintiff need merely add, “He was hitting on me for months, before he raped me.”
A more common use of testimony regarding “prior bad acts” is in impeaching a witness’ credibility.
… a witness's credibility can be impeached with intrinsic evidence of prior bad acts bearing on truthfulness, even if the act did not lead to conviction. (Evidence that is "intrinsic" comes from the witness's own mouth, rather than from documents or the testimony of another witness.)
Trying the Accuser
2. Feminists, who coined the slogan that aggressively cross-examining a woman who has charged a man with rape means that “the victim is being raped all over again” notwithstanding, in every criminal trial, the accuser must also, figuratively speaking, be put on trial. We call this the right of a defendant to confront his accuser. That is true whether the accuser is an individual or the state. (E.g., seeking to impeach the testimony of an arresting officer.) A defense attorney who did less would be guilty of legal malpractice. And indeed, if the accuser cannot withstand a trial, then the defendant should be acquitted, or the charges dropped, with prejudice, meaning that they may not be reinstated. (The feminist slogan was invented, in order to make it easier to railroad innocent men.)
In the Jackson trial, it is not just the accuser whose credibility is at stake, but his brother and mother, as well. Indeed, since it is the accuser’s mother who was the main force behind the case, her credibility or lack thereof may, for all practical purposes, be the central issue for the jury to decide. (This although the judge may have instructed the jury to focus on the accuser’s testimony.) The accuser’s mother has been revealed to have a history of welfare fraud. And a paralegal who worked for the mother’s lawyer on a lawsuit against the J.C. Penney department store, in which the mother claimed to have been roughed up by a security guard, has also given testimony unfavorable to the mother. The paralegal, who is not bound by attorney-client privilege (after all, she’s not an attorney), testified that the mother had told her that bruises that she had charged the J.C. Penney security guard with inflicting on her had actually come from her ex-husband, and that she’d sent her sons to acting class, so that they could convincingly lie. (The mother got over $100,000 out of Penney’s.)
Some legal “experts” have insisted that such testimony is irrelevant, because the accuser, in his video, came across as believable. Well, if I were a juror, the mother’s lack of credibility would weigh heavily on me, and I am sure that that is true as well of some of the actual jurors.
Never-Never Land
3. But then there is some of the evidence against Jackson. Even if we call the countervailing charges of different witnesses a wash (one witness testified to having seen Jackson sexually touching, i.e., molesting, an under-aged Macaulay Culkin, but in Culkin’s testimony, the actor denied the claim), Jackson has proudly boasted to the world for years that he thinks there is nothing better than sharing his bed with under-aged boys who are not his sons during “sleepovers.”
Now, I’m not sure about California law, but I would venture that in many states such a remark would, at the very least, constitute a confession to the crime of child endangerment. At least it would, if the speaker were not a zillionaire entertainer.
And then there is the testimony that Jackson illegally served under-aged boys wine, kept adult heterosexual pornography that would be of little interest to him, but of great interest to young boys having a “sleepover” in his bedroom, and a bottle of Vaseline handy.
The Weight
And so, among the many charges and counter-charges of conflicting testimony, each juror must weigh the following:
a. Legally admissible testimony that the defendant has a history of sexually abusing under-aged boys;
b. Jackson’s own history, outside of the court room, of admitting that he has shared his bed with under-aged boys, though he has insisted that this was all innocent;
c. Jackson’s own history of paying tens of millions of dollars to make child molestation charges “go away”;
d. Testimony regarding the wine, heterosexual pornography, and Vaseline; and
e. The apparently believable testimony of a boy whose mother is an acknowledged welfare cheat, and who has been charged by another witness with having admitted to being a shakedown artist and compulsive liar who has a history of using her sons to further her nefarious aims.
One TV court observer put things in the following extralegal perspective, which I’m sure is shared by some jurors and millions of viewers. To paraphrase, Jackson is not interested in sex with grown-up (or, apparently, even under-aged) females, and he’s not interested in sex with grown-up males. So, who does that leave?
Meanwhile, as MSNBC legal analyst and former Connecticut prosecutor Susan Filan wrote in a mock closing prosecution argument, Jackson would have an under-aged boy in his bed every night of the year.
What on earth do you think Jackson was doing with those children in his bed?
(This reminds me of the argument that convinced me that Mike Tyson was innocent of Desiree Washington’s rape charge: What do you think she was doing coming to his hotel room at 3 a.m., and lying on his bed? The argument came from a civilian, my mom, who had two advantages: She had never attended law school, and she had graduated from high school in 1947, back when a high school diploma meant something. My mom, however, did not prevail. Tyson was convicted and sent to prison in Indiana. That questionable conviction did not send me into paroxysms of outrage, however, because it was no secret at the time that, as one sportswriter noted, Don King and Tyson’s other handlers had been following him around for years, paying hush money to countless women who’d crossed the champ’s path.)
If Michael Jackson is convicted, I do not believe it will be on the basis of the prosecution’s case regarding the specific charges against him. Based on the testimony regarding the accuser’s mother (and thus the accuser and his brother), there is enough reasonable doubt for a top-dollar criminal defense attorney like Jackson lead counsel Tom Mesereau to get a hung jury (and thus a mistrial) or an acquittal.
I doubt that the jury will convict on lesser charges while acquitting Jackson of the major ones, because the “minor” felony charges are integral to the major ones. Jackson is charged with having given the boy alcohol, in order to molest him. And the conspiracy charge depends, more than anything else, on the credibility of the accuser’s mother, because the charge comes entirely from her.
According to MSNBC legal analyst Dan Abrams, the jury could convict Jackson of a misdemeanor charge of giving alcohol to a minor, which would carry only probation and a fine. If the jury did that, I believe it would be because they were acquitting Jackson of all the felony charges, and were using the misdemeanor conviction as a fig leaf to cover up their embarrassment. Criminal trial juries today seem to feel a powerful inhibition against convicting celebrities, regardless of how strong the prosecution’s case is. Meanwhile, they have no problem throwing the book at ordinary Joes, regardless of how weak the prosecution’s case is.
That Michael Jackson believes that he is above the law, is clear from his behavior during the trial. Had a defendant lacking fame or wealth repeatedly appeared late for court dates, the judge would simply have revoked his bail and remanded him to custody for the duration of the trial.
In any event, juries have violated logic in the past, and could so again.
In New York back in 1974, black supremacist gangster Sonny Carson was convicted of kidnapping two men, one of whom was murdered in the course of the kidnapping, but Carson was somehow not convicted of murder. And Egyptian terrorist El Sayyid Nosair, who in 1990 assassinated Jewish radical gangster-politician Meir Kahane in broad daylight in front of witnesses, and was arrested while in possession of the murder weapon, was acquitted of murder, but convicted of possession of an illegal weapon. Nosair was later convicted, as well, for his role in planning the first, 1993 bombing of the World Trade Center, as part of a group led by blind cleric Sheik Abdul Rahman, that was affiliated with what would later become al Qaeda. (Ironically, Carson, Nosair, and Kahane all promoted ideologies that had much in common with Nazism.)
Endangering the Welfare of America
Getting beyond the court room, it is a statement as to the decline in moral standards in America that a man like Jackson, who had repeatedly paid millions in hush money to make molestation charges from other boys go away, could still get record and concert contracts, make millions off cd sales, and have a substantial following of fans. For that, we can thank the unlikely bedfellows of gay activists and the Nation of Islam; the former for eliminating the principle of sexual morality, and the latter for steadfastly defending Jackson, simply because he is black.
But what cannot be blamed on gay activists or the Nation of Islam is the fact that in an age in which taxpayers waste billions of dollars on social services which purportedly “protect” children, hundreds of parents across the country would permit their under-aged sons to share the bed of a grown man, none of whom, to my knowledge, has ever been charged with child endangerment for these acts.
Jury Logic
If all twelve jurors vote to convict Michael Jackson, it will be because they have been convinced, in spite of any doubts they may have regarding the honesty of the current accuser, his brother, and his mother, that the defendant is a monster who has sexually abused boys in the past, and who must be prevented from striking again.
According to traditional legal theory and practice, that would be an unjust verdict. But would it be an unjust verdict, according to California law, such as it presently is? And would it be unjust according to a good sense respect for law and the prerogatives of jurors?
After weighing all of the above factors, I’ve concluded that the only just verdict in this case is none at all, i.e., a hung jury and a mistrial. Thus, if I were a juror, I would hope that I would watch which way the wind appears to be blowing, and vote the opposite way. A new jury deserves to hear this case, but without having to endure the incompetence of prosecutor Tom Sneddon and Judge Rodney Melville.
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