Trial by Video: The Michael Jackson case
By Burton S. Katz/Retired L.A. Superior Court Judge
There are at least two scenarios a prosecutor fears in a child molestation case. The first is that a skilled defense attorney will confuse and undermine the testimony of a child witness such that he will not be believed, and second, the trial will serve as an altar upon which the child will be sacrificed in the name of justice.
Thus, Santa Barbara District Attorney Tom Snedden is attempting to mitigate the foregoing by trying to ease the path to the alleged victim’s claim of child abuse by Michael Jackson so it is more likely the child will be believed. He intends to do so by presenting to the jury what may prove to be a damning video documentary of Jackson produced by British journalist Martin Bashir. The so-called documentary, entitled “Living with Michael Jackson,” contains a distillation of interviews with Jackson over a period of seven months. The defense has unsuccessfully attempted to block the showing of the video to a jury on the grounds that its content is unrepresentative, inaccurate, highly selective and prejudicial because it contains out-of-context excerpts from a biased Bashir.
Santa Barbara Superior Court Judge Rodney S. Melville has overruled the defense objection and will allow the jury to view the Bashir video on condition that Bashir himself appear as a witness at the trial. The judge has deferred a ruling on whether he will allow Jackson’s videographer to present a video he had taken of Bashir during his interviews with Jackson, the defense arguing that the jury should view it to see how selective and biased Bashir’s choice of material really was.
Having observed Jackson’s defense attorney, Thomas A. Mesereau, Jr., cross examine witnesses in the Robert Blake preliminary hearing, I can assure you that Bashir is in for a long and brutal cross-examination regarding how he edited the tapes, why he chose specific material and excluded other contextual material, and what he and his executive producers were trying to accomplish in the final edit. Mesereau and his defense team will attempt to demonize the British journalist, depicting him as basically a scandal sheet reporter unworthy of any credibility. Ah yes, the ole British tabloid defense!
The defense has one problem. And that is the client himself. I defy any of you who are reading this column to tell me that you have no opinion of Michael Jackson, and that it is not fixed. I challenge you to tell me that he is a typical, normal 40 something-year-old fading pop superstar. Jackson has been referred to as “weirdo,” “jocko” and worse in the worldwide media. The defense will have to overcome the old adage, “Where there’s smoke, there’s fire.” Many jurors will lie when they answer the questionnaire insisting that they have no fixed opinion about Jackson or this case. They will hedge their answers about whether they have read the tabloids and been influenced by them. They will claim that they have only a vague recollection of a child abuse charge made by another alleged child victim who settled his case for a reputed $15 million – $20 million in 1994. They will tell the judge, while they disagree with Jackson’s alleged relationships with children, they will keep an open mind. Yeah, and we’ll keep an open mind as to whether Jerry Buss’s trade of Shaquille O’Neal was good for the Lakers! Sure.
The defense has to deal with Jackson’s own admission in the video that he enjoys sleepovers with young boys; and his statement that he sees nothing wrong with a young minor boy sleeping in the same bed as the superstar. The problem is others do-a whole lot of other people.
But there are things a skilled defense team can do. The defense can question the enormous influences on the alleged victim and his brother to testify against Jackson. They can question the motive of the parents; they can suggest that the parents were using their small child to extort money from Jackson, given his past settlement with another child. Jackson is their holy grail! These are good defense lawyers. They can do a lot of damage to the prosecution case.
Will the children in this case prove to be simply pawns in an ever-increasing media event as journalists from all over the world tumble upon Santa Maria to see Jackson wrestle for his life? Make no mistake about it-the children in this case will never be the same. Neither will Jackson. If the children are telling the truth, it is a tragedy. If they are lying, it is a tragedy. While the video may ease the way for the children’s testimony, the ultimate question remains: will it lead us to the path of truth or to a horrible injustice?