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Down To Wire In Jackson Case

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



Imagine yourself in a small boat on the ocean, bobbing up and down between the swells. One minute you are up on a crest. The next minute you are down in a trough. One minute you can see the horizon. The next you see nothing but a wall of water. That's what it's like covering the Michael Jackson molestation and conspiracy trial as it nears its dramatic conclusion.

Jackson is up. He is down. He is certain to be acquitted of all but the least serious charges. He is a cinch to be led out of the courtroom in handcuffs. Santa Barbara County District Attorney Tom Sneddon did a solid job of presenting evidence against Jackson. Sneddon is the biggest boob to grace a California courtroom since Marcia Clark.

Like music or art or wine or movies, where this case now stands – what Jackson's fate is likely to be – is entirely in the eye of the beholder.

For example, after months of relentless doubt about the strength of Sneddon's case, the buzz here in lovely Santa Maria is that Jackson now is in big trouble. Why? Because last Friday jurors saw a videotape of an interview between the police and the alleged victim in the case, a video that in the eyes of most court watchers here cast a completely new and entirely positive light upon the credibility of Jackson's accuser. Whereas the young man was surly and contentious and not a little unbelievable on the witness stand a few months ago, he was sad and not a little sympathetic on the videotape.

Compounding this "evolving" impression of the state of the case is the fact that Jackson's attorneys chose not to respond to the introduction of the videotape into the trial. They had threatened last week to call back to the witness stand their client's accuser to try to offset the damage done by the videotape. But then they changed their minds and simply rested the case with the videotaped testimony left unanswered by Team Jackson. The defense is off-balance! the spinsters breathlessly declared. Reeling! A body blow!

Conventional wisdom, whatever that means, now sees the videotape as a "game-changer" that may have saved the prosecution's case. This is from the same folks who weeks ago were laughing about how badly prosecutors were being routed by the defense. I'm throwing stones at myself, too. I am one of the bloviators and I have spoken and written things during the course of this trial that, in retrospect, seem relatively quaint. Mostly that's because trying to evaluate which side is "winning" and which side is "losing" during the course of a trial is like trying to gauge who is winning a chess match without being able to see the board or talk to the players.

I don't think journalists are alone in feeling this way about this trial. I suspect that the jurors themselves have been seesawing back and forth from witness to witness, or theory to theory. It's only natural and, frankly, a healthy sign of the kind of open-mindedness you want to see from a group of people determining a man's fate. Besides, the judge here admonished the panel to reserve its final judgments until all the evidence was introduced and all the arguments made. If there were momentum shifts among the jurors, individually or collectively, we likely will never know when they occurred or how much they impacted the jury's final decisions.

The problem for the defense, of course, is that prosecutors have the momentum going into closing arguments, and there ought to be a real fear in the Jackson camp that this momentum will carry over into deliberations. That's why Thursday's closing arguments may be more important for the defense than they are for prosecutors. Not only do Jackson's attorneys have to remind jurors about all the good evidence their side presented during the trial, they also have to try to grab momentum back and that is very difficult to do when only a lawyer, and not an important witness, is talking to the panel.

So the endgame, finally, is here. Before the end of the week, the jury will have the case. After months of listening, they'll finally have their chance to speak.

Briefly...

Pat Buchanan, the paragon of partisanship, the prince of polemics, says that W. Mark Felt is a bad guy for leaking vital information to the Washington Post a generation ago as the "Deep Throat" source who helped bring down the Nixon presidency. Buchanan and the rest of his Watergate cronies contend that Felt acted unethically (at best) and illegally (at worst) because he disclosed confidential investigative material to folks who were not entitled to know it.

I understand the concern that more reasonable minds than Buchanan have about the security of federal investigations. I understand that the second-in-command at the Federal Bureau of Investigation would and should have obligations to the government and to the bureau that at first glance would be far more significant than any loyalty he would have to a journalist or a cause. But what in the world was Felt supposed to do?

At the time he was acting as the "Deep Throat" source, his supervisors at the White House were engaged in the very criminal conspiracy he was charged with investigating. Raising the issue of their conspiracy to them would have been tantamount to a hen inviting herself into a fox's den. You could argue that Felt should have been content to allow the legal process to play itself out, but that process itself had been subverted by the very people whom Felt was working for and with. Caught between his loyalty to the government and his loyalty to the truth, he chose the latter. For that, he is an American hero.

As more recent whistleblowers have illustrated, America works best when the workings of its government are transparent. And for that we need men and women of goodwill and good faith and courage, men and women like Felt, to come forward and shed light on the darkest sides of politics and government. There is a long tradition of that in this country, going back to before the Revolutionary War, and without that noble quirk of American character we might today still have a Queen instead of a president.

By Andrew Cohen

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