Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
After two months of twists and turns, stops and starts, grins and giggles, pajamas and protests, and many moments of "ick"-inducing testimony, the prosecution's case-in-chief against Michael Jackson now is over.
It is as strong as it is ever likely to be in advance of the defense witnesses who are to follow. Right now, theoretically, there should no be reasonable doubt in the minds of the jurors who have sat patiently and listened day after day to testimony in this famous child molestation and conspiracy trial. If District Attorney Thomas Sneddon doesn't have the panel on his side now he shouldn't presume that he ever will. For prosecutors, this is as good as it gets, to use a Hollywood phrase, and it is not too much of a stretch to say that it doesn't appear to be nearly good enough.
The case against Jackson so far has been supported by the motliest collection of witnesses I have ever seen assembled in one case. Like characters from a Damon Runyon story, many of them have stepped out from hiding places and shadows, with dark backgrounds and shady motives, to bear witness against the King of Pop. Jackson may be a freak but the people Sneddon has relied upon to put him in prison aren't exactly Pat Boone, either. With the exception of the mother of one of Jackson's earlier accusers, and perhaps two or three other, lesser lights, not a single vital prosecution witness came to or left the stand without serious and substantial credibility or accuracy issues. Not a single one.
You know you have a weak prosecution case when the journalists and lawyers covering it are asking why some of the witnesses, including those in the accuser's family, haven't been indicted as well. And you know you have problems as a prosecutor when the defense keeps scoring more points with your witnesses than you have. And yet that happened with stunning frequency over the past two months. The case against Jackson seems to have so many holes in it right now that Thomas Mesereau, the lead defense attorney, could call not a single defense witness and still have a reasonable belief that the jury would acquit his client. He won't do that, of course, but if he didn't I'm not sure I would blame him.
That bad? Pretty much. The alleged victim in the case was a terrible witness, surly and combative on the stand, with the details of his story changing from telling to telling. He is not even sure how many times he says Jackson molested him and he told jurors that he is not the type of person who allows others to take advantage of him. The accuser's mother, meanwhile, was even worse on the stand, playing to jurors with precisely the sort of acting skills and drama that Jackson's lawyers say she used on the defendant and other celebrities as she trawled for money among Hollywood's B-List.
Moreover, there is precious little physical evidence linking Jackson to a crime, especially if you do not count the adult magazines that the defendant legally had in his home. Meanwhile, the mother of two of Jackson's children, called by prosecutors to help them link together the conspiracy charge against him, did the opposite. Debbie Rowe says that Jackson was isolated from the men around him, the men with whom the alleged victim and his family mostly dealt — the men against whom conspiracy charges were not brought. If those men didn't engage in a conspiracy despite all of their proven actions, jurors could reasonably ask today, then how could Jackson have done so? And if prosecutors didn't charge these other men, the jury might add, then why are we contemplating convicting Jackson?
Without a crucial ruling early in the case, the one that allowed jurors to hear about prior molestation allegations against Jackson, the trial probably would be over already with a defense win. And even with that huge boost for prosecutors I'm not sure they connected all of the dots. It's seems reasonably clear now that prosecutors lumped the conspiracy case against Jackson in with the molestation charges because they needed the conspiracy evidence to convince Santa Barbara County Court Judge Rodney S. Melville that Jackson had engaged in a pattern of behavior in the past that warranted the use of prior-act witnesses during this trial. But most of the witnesses who paraded before jurors as a result of the "pattern evidence" ruling were just as shaky and dubious as were the alleged victim and his family.
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