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Can Jackson Get Fair Trial?

Attorney Andrew Cohen analyzes legal issues for and CBS News.
In the long history of the American criminal justice system, which has seen more than a reasonable share of "cases of the century," there has never been a case like the Michael Jackson child sex case. You can wrap up together in a big bag Fatty Arbuckle, Sacco and Vanzetti, Leopold and Loeb, John Scopes, Bruno Hauptmann, Alger Hiss, Sam Sheppard, Charles Manson, Claus von Bulow, O.J. Simpson, and Timothy McVeigh and you still wouldn't get a trial like the one now looming in Santa Maria, California.

It's not because the Jackson trial is important -- it isn't. It's not because it highlights a political or religious or cultural theme of its time -- it doesn't. It's because Jackson is a criminal defendant unique to American history. He is the most famous person ever to go on trial in an American court. And he is probably the oddest famous person ever to stand trial. No defendant before Jackson ever has had to face jurors who have such wide, deep and fixed perceptions about him; perceptions that are linked directly to the charges against him.

The men on trial in those other famous cases of the past century also transfixed the nation in their own unique ways. Their trials also involved pre-trial publicity that was massive, slanted, and often times fairly grotesque. But none had to face what Jackson will have to face, starting today, when the attorneys, the judge, and potential jurors begin an arduous vetting process that could take weeks to complete. The trial is the culmination, you might say, of decades of Jackson's exposure, or overexposure, as the King of Pop. Jackson now must reap what he has sowed; now must endure the consequences of his strange physical makeover and his otherwise bizarre behavior and comments.

Judges routinely ask jurors to put aside any preconceived notions they may have about a notable defendant in order to judge him or her without material bias. And, in the main, jurors are able to perform that mental slight-of-hand by separating out what they know of the defendant from what they do not know about what he is accused of doing. That will be impossible in the Jackson trial and everyone involved knows it. When he represented infamous defendants in high-profile cases, writes historian Phyllis Vine, the late, great Clarence Darrow used to hope for "alert, witty, emotional" jurors "who can understand, can comprehend why, and that leaves no field for condemning." How and where in the world are the judge and lawyers in the Jackson case going to find 12 jurors who fit that bill?

Just because a judge tells them to do so, how are jurors going to forget about "Neverland," Jackson's fortress-like estate where he has entertained his young friends? How are they going to forget about the way he changed his appearance or the way he has talked publicly, on television and elsewhere, about his relationship with young boys? How are they going to block out the fact that Jackson over a decade ago paid a great deal of money to make another, similar case go away? Jackson isn't some fleeting figure who shoots across our consciousness like Scott Peterson or Andrea Yates. He is a figure who has been on the scene for decade after decade; a figure America has seen grow up, become a megastar, and turn weird.

Not as weird, perhaps, as Charles Manson, whose "Helter Skelter" murder trial in 1970 and 1971 is even today a benchmark for courtroom chaos. The Manson family trial was widely anticipated and covered in print, on radio and television and it symbolized for many reasons the political and cultural dynamic of its day. But Manson was not a household name before his murderous spree and even during and after his trial he was capable of being marginalized. Moreover, the very nature of Manson's crimes, and the method in which he committed them and had them committed, defied belief and that disbelief allowed Manson's jurors to at least begin their work in the case with a relatively blank slate.

The same goes for Bruno Hauptmann, the man who was tried in 1935 for kidnapping and then murdering Charles A. Lindbergh, Jr, and for Sam Sheppard, the Cleveland doctor who was tried first in 1954 for murdering his wife, Marilyn. The Hauptmann and Sheppard trials were sensational for the acts charged and the victims involved -- but not because of the defendants themselves. No one outside of his local circle knew who Sheppard was before his case and Hauptmann faded into obscurity shortly after he was executed.

The 1924 trial of Nathan Leopold and Richard Loeb was sensational because the boys were bright and wealthy, because they immediately confessed to killing their little friend, Bobby Franks, for the thrill of it, and because Darrow defended them. The 1982 trial of Rhode Island notable Claus von Bulow was sensationalized because of the wealth and social status of the defendant and his alleged victim. In neither case were jurors able to form such fully-shaped perceptions of the defendants as Jackson's current jurors will have of him before the first witness is sworn in.

Because they involved Hollywood's star power, the trials of O.J. Simpson and Fatty Arbuckle probably come the closest to mirroring what we are likely to see in the Jackson case. But even O.J. did not possess the star power that the King of Pop possess and Arbuckle's alleged crimes -- rape and murder -- were so far removed from the public's perceptions of him that he was able to find jurors who were willing to judge him for what he did (or did not do) and not simply for whom he was. After several trials, Arbuckle ultimately was acquitted, his career in tatters. Ditto for Simpson, who then promptly was found responsible for two deaths in a civil case.

Likewise, the trials of Alger Hiss, John Scopes, Nicola Sacco and Bartholomeo Vanzetti all were huge in their day and, to this day, decades later, historians and legal scholars talk about the impact those court proceedings had in the formation of American law and politics. But no one knew John Scopes going into his evolution trial -- in the end it didn't matter anyway -- and Alger Hiss wasn't exactly a household name before his 1949 trial during the heart of the Cold War. The trial of Sacco and Vanzetti was famous but more for its political theatre during the nation's first Red Scare than for the personalities of its defendants. They didn't get a fair trial not because of who they were, but because of what they represented.

Jackson's trial judge, California Superior Judge Rodney Melville, simply has to try his best during the jury selection process to approve jurors who are willing to serve for the right reasons. He needs to approve jurors who are willing to compartmentalize to the fullest extent possible what they know about Jackson going into trial from the elements prosecutors will have to prove against him beyond a reasonable doubt. Judge Melville needs to approve jurors who are willing to say (and believe) that Jackson's odd behavior, even as it relates to young boys, doesn't necessarily or automatically make him a child molester. That will not be easy.

The Constitution does not guarantee every defendant a perfect trial -- it guarantees every defendant a fair trial. Can Jackson get a fair trial given what virtually everyone knows about him and his eccentricities and how those eccentricities play into this case? This isn't just a factual question that will evolve as the trial proceeds through its many twists and turns. It's also a legal question -- can a public figure like Jackson get a fair trial anywhere in America given the circumstances that have led up to trial? No doubt the California Supreme Court, and perhaps even the Supreme Court of the United States, will ultimately have to answer that question if Jackson is convicted.

By Andrew Cohen