Attorney Andrew Cohen analyzes legal issues for CBSNews.com and CBS News.
If prosecutors were hoping that Michael Jackson's accuser would come to the witness stand Monday and cement into place their case, they surely are disappointed, and perhaps even mortified, by the young man's courtroom demeanor and testimony. The alleged molestation victim did not talk or act like one in court. And on Monday, during the heart of the prosecution's case, no part of his story was immune from serious and substantial questions about its accuracy or reliability.
At times sullen and combative, cheeky and evasive, acting more like a punk than a crime victim, and often mumbling so badly that the court reporter had to ask him to repeat his answers, the young man did little to persuade jurors that he is telling the truth and Jackson is lying about their alleged encounters together. And it wasn't because Jackson's attorney, Thomas Mesereau, went after the complaining witness like the pit bull attorney we all know he can be. Indeed, part of the reason why Monday was such a devastating day for prosecutors is because the accuser so often during the course of the cross-examination did himself in through word and deed. Calling the young man "Mister," Mesereau was subtle and soft because he didn't have to be blunt and firm. The witness was doing his dirty work for him.
By far the most important revelation from the day's testimony is that the young man apparently told a former middle school dean of his that Jackson had not molested him. "I told him that Michael didn't do anything to me," the young man told jurors after Mesereau asked him what he had told the dean. And what had the dean said to the young man to elicit that response? Mesereau said the school official asked the young man: "Look at me, look at me. I can't help you unless you tell me the truth." Powerful stuff for the defense, especially since it appears that prosecutors were unaware of the dean's purported testimony until this past weekend.
If the dean does testify, and if he says what Mesereau says he will, that testimony alone could easily create the reasonable doubt Jackson needs to be acquitted of the charges against him. What possible incentive would the dean have to lie? Why would he want to help Jackson? Why would he want to sink the prosecution's case? And even if the young man eventually says on re-direct examination that he didn't want to level with his dean because he was embarrassed, the fact is that then he's lied to a person of authority when asked him to tell the truth about molestation -- which is exactly what this trial is all about.
If this were the only problem prosecutors faced with their most important witness, it might be enough to sink the case. But it is not. On point after point, the alleged victim came across as incredible, at worst, and just plain confused at best. During the afternoon, he even seemed to suggest that he was unclear about when the molestation took place; whether it took place before or after the family made a "rebuttal" video designed to respond to the infamous network video of Jackson at Neverland; the one in which he admitted to the world that he enjoyed sleeping in the same bed with boys not related to him. This, too, is the essence of reasonable doubt.
The timing of the alleged molestation is so important to the case that the defense Monday afternoon trotted out for a third time the rebuttal videotape. If the alleged molestation took place before this rebuttal video was made, its floridly pro-Jackson tone makes even less sense than it did last week, when jurors were told that the alleged molestation took place after the rebuttal video. But no matter when jurors are told the molestation occurred, the rebuttal video is powerful evidence for Jackson and his lawyer made great use of it with the accuser in the courtroom. Over and over again, Mesereau stopped the videotape to ask the young man if he and his family were lying or telling the truth in it. Sometimes the answer was yes; sometimes it was no.
Long hours before the rebuttal video graced the courtroom again came the first question of the day. Before jurors even got settled in their seats, Mesereau was talking about the young man's comments about masturbation. Mesereau asked the accuser why he had ascribed the same words about masturbation to both Jackson and his grandmother. In other words, the alleged victim apparently told some people that Jackson had told him that masturbation was necessary because it prevented rape while telling others that his grandmother had said that. The young man tried to explain away the inconsistency but it wasn't persuasive. And from that icky start it went downhill quickly. It got so bad, in fact, that the young man's answers to questions about his cancer made it seem like he often used the disease as a sword, not a shield, and had unrealistic and sometimes even offensive expectations about what Jackson and the rest of the world owed him.
Then there were moments where the young man's testimony simply defied belief. For example, the young man told jurors that his mother was "scared the whole time" he spent at Neverland toward the end of his relationship with Jackson. Fair enough. But he also told the jury that he never told her that he was sleeping in Jackson's bed during that whole time. How can that be? How could a mother scared about her son's relationship with Jackson either not ask where they were sleeping or not do anything about it? Mesereau repeated that line of questions several times in order to ensure that the jury understood the lack of logic. It's not an issue that breaks the case wide open against Jackson but it surely doesn't help prosecutors, either.
Jackson's attorney also focused during the day on portraying the young man as a poor student with a long history of discipline problems; a mercenary punk who was renown for talking back to his teachers and defying authority. The alleged victim told jurors that he lost respect for one of his teachers because that teacher had brought himself "down to my level." One teacher wrote about the alleged victim's "good acting skills" and the young man himself told the jury that he "wasn't that good of a kid then." Now, as the parent of most young teenagers might tell you, some of this behavior is typical. But Mesereau listed at least nine teachers who all complained in one way or another about the young man. This jury has a few teachers on it and you can bet that this testimony in particular resonates with them.
But Mesereau wasn't trying to get jurors to "tut-tut" the witness for his bad school behavior. He was trying to get them to buy into the notion that the accuser in this case is capable of deceit, of defiance in the face of authority, of not suffering fools gladly even at a tender age. In a case where the young man ought to be appear wholly as a victim, Jackson's attorney Monday may him seek more like a punk, like a tough street kid who would be more likely to torment Jackson than vice versa. None of this means that the alleged molestation didn't take place, of course, but in a case about perceptions, about who was more likely to be victimizing who, it's a big deal. Simply put, it is harder tonight for me to believe that the young man would have allowed Jackson to molest him.
Anticipating a question that surely has gone through the minds of jurors, Mesereau also focused Monday upon the idea that the young man and his family had a motive to ruin Jackson's life. Why would a young man do this? Because, Mesereau suggested with his questions, the young man and his family were chronic complainers, career gold diggers, freeloaders and grifters who turned against Jackson when he and his entourage began to withdraw their significant perks and services from them. The accuser apparently complained when the vehicle Jackson gave his family took it back to repair it. And he apparently complained that the expensive watch that Jackson had given him wasn't worth what Jackson had told him it was worth. If that is gratitude, if that is appreciation, then this right now is a close case.
It also bodes ill for prosecutors that they twice seemed surprised by defense questions. First, they apparently were taken aback by the discovery that the dean would testify that the accuser had told him that no molestation occurred. Apparently, prosecutors only questioned this dean on Saturday, two days ago, and then had to meet with the alleged victim Sunday evening to discuss the development. In a case like this, that's unacceptable footwork on the part of law enforcement officials and the District Attorneys' Office, who long ago should have talked to every single faculty member at every single school the young man has attended.
Also, the alleged victim told jurors that he had not been asked by prosecutors about Jay Leno until after the trial started, implying that prosecutors did not know that Jay Leno would play a role in this case until the defense said he would during opening statements. Leno, it now appears, will be a defense witness, called to testify that he, too, was approached by the young man and his family as part of a solicitation effort. In these circumstances, it is inexcusable that Sneddon did not know about that before trial or, if he did, that he did not discuss it with his witness. Inexcusable, but not necessarily inconsistent with some of the other dubious decisions and developments so far in the case that left Thomas Sneddon, the District Attorney, shaking his head inside court late Monday morning.
Dressed in a royal blue dress shirt with a white t-shirt underneath, the young man is short-haired and good looking with a voice that is deeper than his age suggests. But when he testifies, he talks as though he is recalling a story that he has read and not as though he is retelling his own experiences. In that sense, he seems as over-coached and scripted as he seems under-coached in other areas of his testimony. Have jurors picked up on this? I don't know. Recognizing the core of the case when they see it, many of them were furiously scribbling notes Monday. And they were as attentive as you would hope they would be, focusing in upon the young man as he answered, or didn't, the questions posed to him.
Surely, in the end, they will cut the accuser some slack on some of what he says. Being the fulcrum of a case like this surely would not be easy for a mature adult, much less a young person just beginning to understand the real world. And surely there is a lot of detail for him to remember over a long period that marks the beginning and end of his relationship with the defendant. The problem for prosecutors, however, is that there is only so much of a break the jury is likely to cut the accuser, especially when Jackson is entitled to "breaks" of his own, constitutionally-mandated breaks like the presumption of innocence and the reasonable doubt standard.
If I were a member of the jury tonight, I would more likely be wondering why this case was brought in the first place than I would whether or not Jackson is guilty of the charges against him. And that is a horrible calculus for prosecutors now, smack dab in the middle of their case-in-chief. Why? Because with the most dramatic parts of his presentation nearly over, and with a deck stacked with defense witnesses, if Sneddon doesn't have the jury now he likely never will.