The Jackson Trial
By Burton S. Katz/Retired L.A. Superior Court Judge
I don’t know much about the “Big Bang” theory in physics, but I do understand its importance in the Jackson trial. Simply put, the prosecution’s last piece of evidence was a doozy. And it might prove to be the difference between victory for the prosecution and a defense verdict.
I am, of course, talking about the video that the prosecution was allowed to present in rebuttal in which the alleged child-victim in this case first told the police of Jackson’s alleged multiple molestations. The video depicts a soft-spoken child reluctantly disclosing humiliating details relating to his alleged molestation. The child has to be prompted to explain what happened to him. His apparent reluctance to tell all is reinforced by his last remarks to the prosecutor at the end of the interview not to tell his mother about the abuse he suffered.
The child in the video-two years younger-presents a softer, more childlike image than the older, somewhat “street smart” persona he exhibited when cross-examined by defense attorney Thomas Mesereau Jr. Simply put, he was more believable and more vulnerable. More like the innocent child we would expect to see. How this will play with the jury remains to be seen. There could not have been a stronger ending for the prosecution than the seemingly self-conscious reiteration of claimed multiple molestations.
Judge Rodney S. Melville told the jury they could not consider the video for its content, but rather only for the demeanor of the alleged victim. The court’s reasoning was that the entire defense from the get-go was that the claims of molestation were nothing more than an elaborate plan to falsely accuse Jackson of a crime so they could then pursue a civil damage claim in the millions. And therefore it was only fair to allow the district attorney to present evidence of the child’s conduct that was consistent with having told the truth without any coaching or contrivance.
There is another rule that may ultimately affect any verdict that might be rendered for the prosecution. The district attorney cannot sandbag the defense, waiting until the very end of the case on rebuttal to present its strongest evidence of guilt—if it had an opportunity to present it during its case in chief. An appellate court may indeed agree with the trial judge and say that it was perfectly proper rebuttal to defense claims of fabrication and duplicity. But it may also reverse any conviction, if any is returned, because of the extreme prejudicial nature of the evidence. Let me explain. Normally, when a witness such as the victim has been impeached by inconsistent stories and claims of recent fabrication, rebuttal evidence is only admissible if the statements previously made by the witness/victim were made prior to a motive to fabricate. Here there is no showing that the first telling of a claimed molestation to the police on video was made before the motive to fabricate existed. The defense has always alleged that the accuser, his mother and family contrived this allegedly false story long before the police were ever contacted.
The fact that the child told the police at the end of the interview not to tell his mother about the abuse is not controlling. If indeed there was a plot to falsely accuse Jackson, such a statement might be part of an elaborate plan of deception that would have been conceived prior to the first interview with the police. And it might not be.
Depending on how an appellate court views this evidence, it may very well rule that this damning piece of closing rebuttal evidence was too inflammatory and prejudicial and did not meet the criteria for proper rebuttal.
Melville’s admonition to the jury that they should disregard the pink elephant (content of the video interview) they just saw sitting on the throne in their guest bathroom may not be enough to avoid error.
The jury, it will be argued, could not blot from their memory the pink elephant they just saw. In a close case this can be the difference between guilt and innocence.
The closer the case, the more likely the “error” is to be regarded as prejudicial and reversible. Add to that equation that this is the Jackson case tracked worldwide, and anything can happen.
If Jackson is indeed guilty, he should be convicted. There is ample evidence in this case to support a jury finding of guilt. There is also evidence of dishonesty, embellishment and motive to fabricate that may tilt the jury in favor of an acquittal.
This case will now stand or fall on the relative excellence and persuasiveness of the prosecution and defense arguments.
Who should the jury believe?
This is the money portion of the trial. This is where they earn their stripes.