Jackson, Predator Or Prey?
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Michael Jackson won the battle of his molestation and conspiracy trial and sometimes it seemed like it wasn't even close. But his in-court victories, large and small, which piled up almost daily, don't guarantee that he'll win the war and avoid a catastrophic conviction.
Jackson's dilemma is that jurors could believe with metaphysical certainty what witnesses established about the alleged victim's lack of credibility and accuracy and reliability — and still convict Jackson of a serious crime. Strong proof of the family's creepiness and predatory behavior doesn't necessarily disprove evidence of Jackson's bad behavior. Sometimes, shady people are victims, too. And sometimes, guilty defendants have been the targets of their witnesses.
This seedy case has always been all about conflicting patterns. Prosecutors argue that the key pattern in this case is Jackson's seduction of young boys and the manner in which he had his henchman try to cover it up. Defense attorneys argue that the vital pattern here is the accusing family's manipulation and extortion of celebrities, especially the particularly vulnerable and naïve Jackson. If the question for jurors were merely "is Jackson predator or prey?" the job for the panel later this week might be easier than it is otherwise likely to be. At least in that scenario the choice is clear and unambiguous.
But what if the jury is inclined to believe that Jackson is both predator and prey? If that is where the panel comes down during deliberations, the King of Pop will be in big trouble. This is not a contest between an alleged victim and a defendant over who is more culpable. There is no comparative guilt in a criminal case. The young man and his family are not the ones on trial. And a "tie" over wrongdoing has to go to the prosecution, despite the burdens of proof and the presumption of innocence. None of this bodes well for the defense.
If jurors believe that Jackson is both predator and prey, it also means that the panel believes that the defendant and his accuser (and family) essentially conspired with one another, each to achieve his or her own particular goals. If you buy into this theory, Jackson conspired to lure the young man into his confidence to molest him and the young man and his family encouraged this, even pushed for it, to get close to Jackson so they could get rich off him. One plan could not have occurred or succeeded without the other. The defendant and the alleged victim, the argument goes, enabled one another down a path that, win or lose, has led them both to bad times.
Even though it drags the alleged victim and his mother down into the muck, prosecutors would love this "predator and prey" scenario to play out during deliberations because it virtually guarantees some sort of a conviction. California law makes it easier than you would think for someone to be convicted of child molestation and conspiracy. And for that reason the defense must try during closing arguments to make the jury de-link the patterns of misbehavior here and then come down squarely on Jackson's side. This will not be easy for Thomas Mesereau, the lead defense attorney. But he has a decent chance to pull it off.
That's because, if jurors judge Jackson solely on the evidence they saw and heard and read, and if they truly give a "reasonable" interpretation of the reasonable doubt standard, the King of Pop should moonwalk out of court a free man a few days from now — or at least a man who has no felony convictions against him. The alleged victim's credibility was diminished greatly by his appearance on the witness stand a few months ago. The conspiracy evidence against Jackson was truly awful. Purported victims, other than the accuser, told jurors that they had in fact not been victimized by the defendant.
Apart from the emotional videotape of the alleged victim's interview with the police that jurors saw on the last day of testimony, things could not have gone a whole lot better for the defense. In the end, the prosecution's case boils down to a story by a young man and his family who have a clear track record of fudging facts and who by any reasonable measure don't seem like they would allow themselves to be victimized by anyone or anything.
The law of molestation and conspiracy helps prosecutors. The facts seem to support the defense. The predator or prey angle will likely resolve the case. That's why so much is at stake in the closing arguments that are to come — so much more than is usually at stake after a long trial-and why so little good evidence could end up doing so much damage to the life and career of Michael Joe Jackson.
By Andrew Cohen