The Michael Jackson Trial
By Burton S. Katz/Retired L.A. Superior Court Judge
As many of you know, I spend my waking days mediating and arbitrating legal disputes of all kinds. No matter how serious or frivolous the disputes, invariably two questions are asked: “Do you think he (Jackson) did it?” and, “Well, judge, what do you think will happen in the Michael Jackson case?” And for a few minutes an animated discussion is had with lawyers and their clients, all offering opinions. Most express the belief that “where there is smoke there’s fire!” But on the issue as to whether he will be convicted, there is no consensus.
As I think about those questions, they raise in my mind the moral dichotomy between truth and justice. How many of you believe that “truth” is coterminous with “justice?” That, if you believe he molested any of the children, whether in the current case or in other incidents settled out of court, justice demands that he should be convicted? If you do, then you hold to the principal that truth is not only paramount, but also it is the sole arbiter of justice.
Historically, there were many pathways to the “truth.” During the time of the Inquisitions, it was relatively easy to get to the truth. Stretch him a little on the rack and screw, hammer some nails in his hands, burn an eye or two, cut off a few digits … just a few of the pathways to the truth. More subtle forms of truth were derived from people who “swore” that the defendant was a witch. We also derived truth from such proven rituals as “Trial by Combat,” where the warrior with the mightier sword carried the convincing weight of truth; or “Trial by Ordeal,” where, if an accused survived an ordeal of “fire” and “water,” it was deemed that God was with him and therefore he must be telling the truth.
Well, we’ve come a long way from those halcyon days of “justice.” Now we ask a jury to decide whether the state has proven its case by legal evidence-to a moral certainty. “Moral certainty” is not the operative phrase if you seek more than truth; that is, that you also seek justice as well. Let me illustrate. We’ve watched enough “Law and Order” and “The Practice” to know that the prosecution doesn’t get to tell the jury about an illegally obtained police confession-even though it is truthful; that an illegally obtained murder weapon cannot be used against a defendant. Our Constitution, like it or not, wish to change it or not, places a higher value on the preservation of our constitutional liberties than on the “truth” begotten by illegal and unconstitutional means.
I am a great advocate of “the smoke and fire” view. How could all these people, from completely disparate backgrounds, over the years, say the same thing over and over-that Jackson has inappropriately touched young boys-and not be believed?
When you add to that the knowledge that Jackson has settled for millions of dollars with children who have previously accused him of child molestation, and that he says there is nothing wrong in sharing his bed with small boys unrelated to him, one can make some deductions about the current case.
But the jury’s job is much more difficult. They may believe that Jackson has molested little boys before and therefore the truth is that he is a child molester. But they may not believe that this victim in this case is credible. What to do? Do they say to themselves, “Well, I think he is a child molester-he’s done it in the past, but I don’t think they proved it this time,” and acquit Jackson? Or do they say, “He’s done it before,” and I don’t care if he did or didn’t do it this time … I’m not going to let it happen again. He’s guilty!”
You can see how perplexing this process of “justice” becomes. If you believe Jackson is a child molester, then that is your truth. Then, what kind of justice would set him free? And wouldn’t that make truth irrelevant? The very troubling answer is that our American system of criminal justice says set him free, if the jury believes that he did not commit the current crimes, though they believe him to be a child molester.
Jackson’s attorney, Thomas Mesereau, has done an outstanding job in demonstrating motives to fabricate, inconsistencies in testimony, extraneous pressures to build a case against Jackson, and the usual allegations of greed and profiting from “Jacko,” an admittedly weird, eccentric and tragic figure. While the trial seems to be going well for the prosecution, the dynamics of the trial can drastically change over the ensuing months.
What will not change is the conundrum of whether the jury will simply decide on their truth or criminal justice’s principal of “justice for all” in all its manifestations. It would be nice if truth and justice are found to co-exist in this case.