Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Michael Jackson's defense case was as unspectacular and risk-adverse as the King of Pop is bizarre and dramatic.
After an awful prosecution case that sometimes felt like a Jackie Gleason skit, Jackson's attorneys probably felt that all they needed to do with their own witnesses was to avoid mistakes and keep in place the existing dynamic of the molestation and conspiracy trial. If that is indeed all they were shooting for, Thomas Mesereau and Company succeeded. The trial's balance is no more or less tilted than it was a month ago when Santa Barbara County District Attorney Thomas Sneddon finished up his case-in-chief. And that's got to be good news for the defense.
There was no make-or-break witness for the defense. Jackson did not testify on his own behalf because he didn't have to and because putting the King of Flake on the witness stand under oath before his arch nemesis, Sneddon, would have been precisely the sort of risk that the defense was seeking to avoid. Nor was there a particularly dramatic moment over the past month when jurors drew in breaths and gasped in stunned amazement. Even Macauley Culkin seemed old and boring (and since when is Chris Tucker a big star?). By the time the defense got to present its own witnesses so much damage had already been done to the prosecution's case by Sneddon's own witnesses that the last few weeks have seemed at times like a mop-up operation.
To no one's surprise, Jackson's witnesses generally said many nice things about him and many not-so-nice things about his accuser and his family. These men and women told jurors that Jackson did not hold the alleged victim or his family against their will at Neverland, did not molest anyone, and did not engage in any sort of criminal conspiracy.
The defense witnesses raised up Jackson's image and continued to batter the credibility and accuracy of his accuser and his family. If jurors were asking at the end of the prosecution case: "Is that all there is?" then surely they are asking the same question, with more force behind it, now.
One of the more striking things about the prosecution's case is how often Sneddon's own witnesses ended up helping Jackson more than they did the prosecutors. That didn't happen nearly as often with defense witnesses. At worst, some of them, like comedian Jay Leno, did not completely deliver upon what Mesereau had promised during opening statements.
But there's a big difference between a witness who helps a case less than expected and a witness who actually hurts the case. Sneddon had way too many of the later. Jackson had only a few of the former, notably the mothers of two of Jackson's purported accusers, who eerily told jurors about how they let their boys sleep so often with Jackson. For prosecutors, it was often one step forward and two steps back with their troublesome witnesses. For the defense, it was often two steps forward and one step back with theirs. At the end of the process, the defense was able to get across more of its points, more clearly, than prosecutors.
Jackson's defense also included plenty of first-person accounts of Jackson's conduct toward young men. Whereas prosecutors brought onto the stand "third-party" witnesses who said they saw Jackson do this or do that with his alleged victims, the defense actually brought some of those principals into the courtroom and let jurors hear them say that Jackson did not molest them. In fact, the first two defense witnesses were such young men. They emphatically denied the specific molestation that prosecution witnesses said occurred. Even if half the jurors believe them, and half believe the prosecution's witnesses, you've got some reasonable doubt right there. This direct personal testimony was so powerful, in fact, that prosecutors were left asking the young men, including Culkin, whether it was conceivable that they were molested while they were sleeping. "I think I'd realize that something like that was happening to me," is how the actor replied.
In a case about contradicting patterns-Jackson as predator versus Jackson as victim-defense witnesses also supported the theme that the alleged victim in the case, and his mother, were uncouth, unappreciative, conniving, scheming, and generally unsympathetic figures. Defense witnesses told jurors about the boys (the accuser and his brother) running amok at Neverland. They told jurors about the mother of the accuser acting oddly before any acts of molestation are alleged to have taken place. They gave jurors the impression that this was not a family likely to be taken advantage by anyone, let alone a grown man who acts like an immature kid. The accuser's mother, remember, allowed her son (who has only one kidney) to return to Neverland even after she had reason to believe that the kid was drinking liquor there.
None of this necessarily means, of course, that Jackson didn't molest the young man in question. You can be a jerk and a victim at the same time. But the defense did a fine job of reinforcing the notion, initially raised by the young man himself when he testified, that he is not a particularly sympathetic figure for a young cancer survivor who claims sexual molestation. Add that to all the testimonial praise Jackson received, from friends and employees alike, and you get a solid defense presentation, right down to the testimony of the state worker who told jurors that the accuser's mother may have committed welfare fraud.
So what does it all mean as we hurtle toward closing arguments? It means that the defense made only a few small mistakes during its case and did not lose the advantage it has through the entire trial. Does that mean Jackson is home free? Absolutely not. But it does mean that Sneddon has a lot more work to do convincing jurors than Mesereau does as the lawyers prepare for their final moments in front of the panel. So far, the prosecutor has not seemed up to the challenge.
We'll see if that changes after what promises to be the longest Memorial Day weekend ever for everyone involved in this quirky and disturbing case.
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