Guest Column: Here we go again

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Ah, the justice system. We love it. We hate it. The mythical system that never was. Is it about winning, as Bob Shapiro asked after the O.J. case? Does F. Lee Bailey’s amusement over a “stupid” jury of his that had acquitted his client and then recommended clemency because of reasonable doubt reflect a lawyer’s contempt for juries? And does the public, whose members sits on juries, share Ben Franklin’s jaded view of lawyers, namely, that “God works wonders now and then; behold a lawyer an honest man.”

Needless to say, each of us has our own view of the American criminal justice system. This column will hopefully give clarity to the often confusing events and sometimes disingenuous statements of the lawyers, cops, judges, publicists, spinmiesters and the talking heads that purport to divine the truth from the scraps of information divulged to the public. In the ensuing months, we will be talking about the Jackson, Peterson, Kobe, Spector, Stewart and other high-profile cases; the cases that attract lawyers as bright light gathers moths.

Let us begin with Michael Jackson. As you know, he was indicted by a grand jury this past week. The essence of the charge is that he molested a 12-year-old boy. The allegations are serious. If the indictment follows the original complaint filed last December, there are some nine counts, seven relating to allegedly lewd and lascivious conduct with a child, two to allegedly administering alcohol to a minor. This is a big deal, despite the defense’s spin that it was expected and it is no big deal. If convicted, Jackson faces a “practical” sentence ranging from eight years to more than 21 years in state prison.

In Jackson’s favor is the prevailing belief amongst insiders that a grand jury, in the hands of the district attorney, will indict a “ham sandwich.” I know as a former district attorney that a grand jury is greatly dependent on the prosecutor for “guidance.” There is no defense attorney to argue countervailing inferences. There is no defendant. The district attorney knows that she or he only needs to establish a “strong suspicion” that a defendant committed a crime to secure an indictment. Many times, the district attorney uses the grand jury to insulate a weak case (that must be developed more fully later) from defense scrutiny. No cross-examination allowed. And, until a relatively recent change, the district attorney was not even obligated to present exculpatory evidence pointing to innocence. She or he is now. But since we do not know what is in the grand jury transcript, we must hold that thought.

What then, are the benefits to the grand jury process? A small child, who has allegedly been sexually abused, is protected from a media circus and the consequential damage to his emotional and physical well-being. While the day will come when the child must be vigorously examined pursuant to the defendant’s fundamental right to confront and cross-examine his accuser, that time is not yet here.

The defense also benefits from the grand jury process. The damning testimony remains secret, unless a judge was to order the release of the grand jury transcripts, which is highly unlikely. Were the specificity of the claimed underlying facts to be made known to the public, Jackson might be unable to find a bias-free jury pool … all of this being done before the defense even has a chance to look at the district attorney’s evidence, receive proper discovery and to present evidence of bias, inconsistent statements and possible falsification.

Meanwhile, the defense has had the benefit of an aggressive media campaign in which the themes of money, greed and race are said to be at the bottom of these new charges. While, there will be continuing “gag” orders, I promise you that, somehow, this case will be tried in the media before it is tried in the “justice” system. And this column will track its wayward journey to justice.

People will speculate on attorney Larry Feldman’s appearance before the grand jury-Feldman being the lawyer for the young man who was allegedly molested by Jackson in 1993. Feldman also purportedly represents the mother of the current “victim.” Was the previous boy paid some $20 million in a “settlement” with Jackson? Can the court force him to testify now? Can the court force Feldman to turn over evidence, if such exists? What are Feldman’s conflicts of interest?

As you can see there is much to explore in the ensuing columns. For now, have a good week.