Evil Is As Evil Does

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

Jurors in this nasty conspiracy and molestation trial looked at times fascinated and at times monumentally bored as senior deputy district attorney Ronald J. Zonen tried with words, photos, and charts to tear down Jackson's legal defenses and at the same time raise up the credibility and accuracy of the alleged victim and his family. It was not a flashy end to the prosecution's case but it monumentally more coherent than was the opening statement given by Santa Barbara County District Attorney Thomas Sneddon. That doesn't guarantee a conviction — closing arguments never do — but it sure doesn't hurt.

Zonen called Jackson's conduct "horribly illegal" and called the defense theory "unmitigated rubbish." He told jurors that Jackson has a drinking problem and sexual perversions and that the defendant lured his accuser "into the world of the forbidden" in the bedroom of Jackson's Neverland Ranch here. The liquor, the adult magazines, the talk about masturbation and sexuality at Jackson's palacial estate all were designed by the defendant to "reduce the inhibitions" of the young boy, Zonen added. And then, when the boy was ripe and awash with trust for Jackson, the prosecutor told jurors, Jackson would make his move.

It was all part of a routine by Jackson, Zonen told jurors. And then, using the theme of routines and patterns, the prosecutor talked about other alleged molestation victims whose stories made it into evidence at this trial. Indeed, Zonen was at his best when he reminded jurors about the story of another alleged Jackson victim, whose testimony, the prosecutor said, was "absolutely beyond reproach." Unfortunately for Zonen, and as pointed out by defense attorney Thomas Mesereau, the young man upon whom Zonen relied so much in his closing is not Jackson's accuser. It is almost as if Zonen wished it were so, since the other young man was relatively more believable and likeable than the alleged victim in the case.

Zonen did well (or at least as well as he could) in trying to rehabilitate the credibility of the alleged victim and his family. The prosecutor told jurors that the alleged victim's mother was also a victim of Jackson because she "lacked the emotional wherewithal to deal with" the swirl of events when her sons were staying at Neverland. The accuser himself, Zonen told the panel, did as well on the stand as anyone might expect given his age, his difficult past, and the abuse itself, which Zonen said made the young man at times hesitant and feisty while testifying. The alleged victim was weak, Zonen told jurors, and predators like Jackson, like lions in the desert, always go after the weak. It's the first time we've heard the "Jackson as Lion" theory of the case.

Another strong part of the prosecution's presentation was its focus upon the idea that common sense should dictate a conviction in the case. This surely will resonate with jurors since so little of what Jackson does or says makes sense to anyone else. But whether it resonates enough to pull the jurors to a conviction is the question for deliberations. In the meantime, Zonen was content to ask jurors if they feel "comfortable with" what Michael Jackson did when the young accuser and his brother were staying with him at Neverland.

"Why would they make up something like this?" Zonen asked jurors, referring to the defense claim that the alleged victim and his family made up the whole story to get a big payday from Jackson following a conviction. He told jurors repeatedly to use their common sense in evaluating the evidence — a request that the defense would also make before the day's talking was done. Prosecutors hope that the most logical story here — that it is more likely that Jackson is lying rather than the handful of young men who have come forward to accuse him — is the one jurors grab hold of if and when the deliberations get difficult.

The most dramatic part of the presentation occurred when Zonen showed jurors photographs, taken from magazines, of nude young boys. You could not help but look at the photos, if, indeed, you dared to look at the photos, and realize that even if Jackson is acquitted of the charges in court he will never be forgiven in the court of public opinion for the kinds of material he left floating around Neverland when so many kids were running in and out of its doors. For a moment, seeing those photographs, you could believe that Jackson were capable, mentally and emotionally, of committing the acts with which he has been charged. And getting jurors past that hurdle-getting them to believe that the defendant is capable of such horror-certainly would help prosecutors get their conviction.

Zonen made no fatal mistakes during his argument. He spent an awful lot of time, again at the beginning of his presentation, focusing upon the conspiracy charge against Jackson, which most folks here, present company included, perceive as legally preposterous. And he was unconvincing at times in explaining away the bizarre behavior of some of the other key prosecution witnesses, who were supposed to help bury Jackson but who ended up praising him. Mostly, too, he was emotionally flat in his delivery and there was a noticeable difference in court between the jury's perceived attention span during his presentation as compared with Mesereau's briefer chat. Jurors didn't seem to follow every word Zonen said. But they did seem to follow every word Mesereau said.

Easily the worst part of Zonen's argument was the start of it, when the prosecutor inexplicably surrendered the jury's attention with an unusual assault on the credibility of Jackson's lead attorney, Thomas Mesereau. Talking about Mesereau as if he were a criminal defendant himself, Zonen kept telling jurors about all of the promises Mesereau had made in his opening statement but had never kept during the course of the trial. Mesereau "knew or should have known" this or that, Zonen kept telling jurors, as each precious minute of the jury's attention dripped away. Clearly, Zonen has saved some of his best zingers for tomorrow, when he literally gets the final word before the judge sends the jury packing off to their deliberations.

You never get a second chance to make a first impression and jurors are never more attentive than they are at the very beginning of an argument in the first moments of the day. But instead of zeroing in on the core part of the case against Jackson, instead of saying certain words and phrases that jurors were most likely to remember longer because of their placement in his argument, Zonen went after his counterpart at the defense table. It won't change the outcome of the case but it was a waste and a poor strategic choice.

And Mesereau knew it, which is why he pounced immediately upon the start of his closing argument by reminding jurors that the case "is not a popularity contest between lawyers" and that anytime prosecutors attack a defense lawyer in a case it means they have nothing else to attack. Later, the defense attorney would accuse Sneddon and Company of "absolute misconduct" and say that they were engaged in a "barbaric attempt to dehumanize" Jackson by trying to tell jurors about his financial problems and by making too much of the fact that he had legal, adult magazines in his home. But who says lawyers have to be consistent with the nasty-grams they send to one another at the end of a long, emotional case?

By the end of the day, Mesereau had counterpunched effectively on the merits of the defense case, giving jurors concise and coherent reasons why Jackson ought to be acquitted. In that sense, it was a day that began and ended fairly, even if the in-between moments weren't always so pretty. Friday the defense will complete its presentation and then prosecutors will get a brief final word before the judge sends jurors off to deliberate. If Thursday was a day for stridency and detail, Friday will be a day for raw emotion. If Thursday was a day for confidence from the lawyers inside court, Friday will be a day for pleas.

By Andrew Cohen