The Michael Jackson Trial
By Burton S. Katz/Retired L.A. Superior Court Judge
In my column last week I made reference to what appeared to be the powerful direct testimony of the alleged victim’s younger brother, who claimed to have witnessed Michael Jackson molesting his brother while the latter was allegedly sleeping in Jackson’s bed on two separate occasions. The brother told of Jackson allegedly serving liquor to the “victim,” whom as you know, is a cancer survivor having only one kidney; appearing nude in front of the two brothers while exhibiting an erection and simulating intercourse with a mannequin on the bed.
The above testimony, presented at the very beginning of the trial, followed Martin Bashir’s damning video of Michael Jackson holding hands with the alleged victim as Jackson told Bashir that he saw nothing wrong with a 42-year-old man sharing a bed with the boy. It seemed like the potent start to a first round knockout. Not content with the alleged victim’s brother’s testimony, District Attorney Thomas Sneddon then put the alleged victim on the stand to once again repeat the terrible allegations. What Sneddon has done is to frontload the prosecution case so as to make an immediate and powerful impression on the jury. But there are risks to this approach.
I would like to share an insider’s view with you. As a former prosecutor, I followed the time-honored strategy of opening the prosecution case with powerful testimony, followed by the necessary “supportive and corroborative” evidence before closing with another formidable piece of evidence or testimony. Make the initial impression big, bring in the corroboration and fillers, then close with a lasting overpowering image of undeniable guilt. Never did I put an alleged victim on the stand at the very beginning of the case until I had laid the groundwork with other witnesses to prepare the jury for such testimony, including the explanation of the witness’ previous inconsistencies, omissions and purported inaccuracies.
As I have noted before, defense attorney Thomas Mesereau is a skilled cross-examiner. He has damaged the testimony of the alleged victim and his sister and brother; how much damage remains to be seen in light of other evidence to be presented. He has caught them in alleged lies, inconsistencies and laid the groundwork for the ultimate charge that this is a shakedown for money from an oddball, weird and vulnerable fading superstar. One who appeared in court last Thursday in his pajamas! Mesereau has brought out the fact that no complaints of Jackson sexual improprieties were made until after the brothers saw one lawyer, who referred the family to Larry Feldman, the lawyer who represented another minor child in the early 1990s and secured a settlement purportedly approaching $20 million against Jackson. It was civil attorney Larry Feldman who then referred the family to a therapist who procured from the boys their current allegations of sexual abuse.
In fairness to District Attorney Sneddon, he may be counting on the possibility that the jury will be left, at the end of a long trial, with simply a strong impression of alleged sexual abuse; that they will have forgotten about the many inconsistencies, if not lies, of these witnesses; and that any weaknesses, now perceived, may be long forgotten.
Sneddon may be counting on closing with the potentially most powerful evidence available in his case-that being the testimony from Larry’s Feldman’s previous client, who settled with Jackson out of court. The judge has preliminarily indicated that this testimony may be admitted on the theory of it being other-crime evidence establishing a modus operandi, common plan and scheme. Such testimony can only be admitted if it shows a similar pattern of predatory sexual abuse, scheming and methodology. This evidence can be used to establish the defendant’s intent, motive, identity, knowledge and means to commit the current offense. The key to the use of this evidence is its similarity to the instant offense. And the jury will be impressed with such evidence if it unfolds.
Worse, the judge may instruct the jury that if they find that Jackson committed a prior sexual offense, then they may infer that the defendant had a disposition to commit the same or similar offense.
Finally, this trial is as complex as a master chess match. One wrong move can change the course of the match. I cannot help but remember the alleged victim’s words to the district attorney in front of the jury: “Tom, can I have some water?” I’m not comfortable with an alleged child victim calling the district by his first name. If nothing else, it will play into the hands of the defense. What is their relationship? How much pressure has the district attorney, the family lawyers and the parents brought to bear on the current version of events? That can’t be answered until we hear all of the evidence.
As for Jackson, this is not a Pajama Game! The defense, likewise, has a full plate with Michael Jackson as a client.