High Noon In Pajamas

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

We have reached the winner-take-all moment in the Michael Jackson molestation and conspiracy trial. His young accuser is on the witness stand, brought before jurors earlier in the trial than anyone expected, and when he is finally through, the outcome of the case may have been determined no matter what happens in court from here on in.

His most detailed and damaging testimony came on a day when the Jackson trial morphed for a few hours into a latter-day, Simpson-like circus, replete with motorcade shots of the defendant's vehicle screaming its way up California Highway 101 on the way to Santa Maria.

Jackson's well-chronicled trouble with Judge Rodney S. Melville Thursday morning - the pajamas, the bench warrant, the back pain - is meaningless to the trial itself except that it took away media focus from the nitty-gritty testimony offered by the alleged victim.

When the panel convenes to deliberate perhaps months from now, surely what jurors will remember most from this dramatic day will be the accuser's edgy testimony and not the fact that Jackson was an hour late for court and was scolded for it by the judge in front of them.

Yet, the cable channels and talk shows Thursday weren't talking mainly about the molestation charges, or the dramatic showdown between young accuser and rich, famous defendant. They were talking about Jackson and the way he wobbled into court wearing pajama-bottoms (and a dark blazer, in case you are scoring at home).

And in that sense the day's PR battle was a win for Jackson, even though virtually everyone I spoke with over the course of the day figured that Jackson had faked a back problem because he didn't want to sit in court through what surely for him was the worst day of the trial.

The whole rest of the world might think that Jackson was afraid to face his accuser - not afraid to tick off the judge, and certainly disrespectful of the entire process and all those in it - but his jury doesn't know that, or at least it shouldn't.

Jackson was one grumpy mood away from having his bail revoked and having to spend the rest of the trial, and perhaps beyond, away from his beloved Neverland. And yet he emerged with just another warning.

Talk about a Thriller! I hand it to the judge for neither under-reacting nor over-reacting to Jackson's antics. What Jackson did, or didn't do, wasn't a hanging offense in terms of throwing him in jail. And there is a huge incentive to keep this trial on its tracks and push it through to completion nor matter which side wins.

On the other hand, I'm willing to bet that Jackson shows up on time for court now for the rest of the trial unless he is a coma or worse. With one deft move, Judge Melville kept firm control of his courtroom and this trial.

The alleged victim in the case - dressed like the young teenager that he is - gently told his story late Wednesday and Thursday, hitting all of the points that prosecutors had promised he would. At first, he told jurors, it was all peaches and cream at the Neverland Ranch. And then it wasn't.

Jackson's accuser offered plenty of incriminating details, the type of details that tend to persuade jurors of the truth of the matter. He was often sympathetic on the stand, even sweet at times, and only during the brief cross examination did he appear to have the edge that his siblings had, even when they were being questioned by prosecutors.

Perhaps more significantly, Jackson's accuser seemed at times to contradict the sworn testimony of his brother and sister - even before cross examination - and was not as clear on as many details as I suspect prosecutors would have liked.

There are so many little nuggets of testimony that could push jurors in one direction or another. For example, on Wednesday Jackson's accuser told jurors that the King of Pop had encouraged him to tell television reporter Martin Bashir that he, Jackson, had "pretty much" cured the boy of cancer by virtue of his kind acts.

Do you believe Jackson would have said that? Or do you believe his accuser is exaggerating what Jackson really said? District Attorney Thomas Sneddon asked the young man whether it was true that Jackson had helped heal him.

"Not really," the alleged victim testified, "because for the majority of my cancer, he wasn't even there." It's not surprising that this line of inquiry is the first thing Jackson's attorneys asked about when they got their chance to begin to question his accuser.

Details? The boy called Jackson's bedroom "our room." He said he wasn't looking the first time Jackson molested him. When asked by the prosecutor how many times Jackson had molested him, the young man said cryptically: "In my memory only two times. I kinda felt like it was more than two times, but in my mind I only remember two times, but I kinda felt like it was more than twice."

Jackson's accuser also said the pop star told him it was okay to drink wine - even though the alleged victim has only one kidney - in order to "relax" and avoid the "stress" of all the media attention the boy received in the wake of his infamous appearance on the network video that launched all of this. And he testified that Jackson, as a prelude to the alleged molestation, told him "if a man doesn't masturbate, he can get to a level where he could rape a girl."

Horse-race wise, prosecutors again missed a chance to take advantage of a great timing opportunity. In a vivid example of bad "clock management," District Attorney Thomas Sneddon found a way to finish his direct examination with less than a half hour left in the day.

This allowed Jackson's attorney Thomas Mesereau a few precious moments to make a few quick points on cross-examination before the jury went home for a long weekend (jurors are off Friday, there is a motions-only session for the judge and lawyers).

Therefore the last lawyer jurors heard Thursday was Mesereau, not Sneddon - and the last points the jury got before they left were defense points. In fact, the judge had to tell both Mesereau and the prime witness "not to argue with each other," which is not what prosecutors wanted jurors thinking about between now and Monday. It was a significant tactical mistake for the State.

What Sneddon and Company should have done was run out the clock on the day's session and avoid passing their precious witness over to Mesereau so near the end of the day. This easy-to-do tactic (ask a few more questions, that's all) would have meant that jurors over three days would only have had the prosecution's version of events to mull over.

Prosecutors could then have hoped that this version - a malleable mix of fact and emotion - could have hardened like cement into the hearts and minds of jurors. But that vital opportunity, a once-in-a-trial opportunity, now is lost to prosecutors. It might not end up making a difference in the case, but it certainly wouldn't have hurt Sneddon's chances of a conviction.

As for the defense, Thomas Mesereau - as quick on his feet as any attorney I have ever seen - now has a full weekend to study the alleged victim's direct testimony and prepare to attack it. The cross examination on Monday therefore ought to be as close to trial art as any of us are likely to see.

Mesereau has to attack the credibility of the accuser without attacking the young man himself. He has to convince jurors not to believe the alleged victim's story but allow them to still feel sympathy for him and his fight with cancer. And he has to get the panel suspicious about every other part of the prosecution's case that is to come. It will not be easy, but that's why Mesereau gets the big bucks.

On this day, Jackson learned that a good judge trumps a pop icon any day of the week. The jury learned that the young man accusing Jackson is in some ways less sympathetic (and certainly more feisty) than prosecutors promised he would be.

The defense learned that its already difficult job is going to be that much more difficult, not just with this prime witness but also with an increasingly shaky defendant.

Me? I learned that pajamas at trial just don't look right no matter who is wearing them.


By Andrew Cohen
  • David Hancock

    David Hancock is a home page editor for CBSNews.com.

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