Attorney Andrew Cohen analyzes legal issues for CBSNews.com and CBS News.
It's still way too early to predict how the Michael Jackson child molestation and conspiracy trial will turn out. But one full week into the trial it is not too early to say that so far the prosecution's case has been under-whelming, with gusts up to awful. If this trend continues for the next few weeks, or months, by the time Jackson's attorneys begin to present the defense case they might have the jury eating out of their hands.
Now, just because Santa Barbara County District Attorney Thomas Sneddon is off to a bad start doesn't mean that Jackson ultimately will be acquitted. Other recent prosecutions have lacked spark and quality only to result in big wins. Martha Stewart was convicted of obstruction of justice last year after a lackluster case by federal prosecutors. And Scott Peterson's prosecutors didn't exactly blow anyone away with their endless presentation before his jury came back with a conviction and a recommendation that he be given the death penalty for murdering his wife.
But in a case like this you don't want to take chances. And you take a chance during opening statements when you take a case littered with lots of times, dates and characters and don't offer jurors a simple narrative about who did what to whom and when. Sneddon's opening statement was simply not good enough to draw jurors into the story that prosecutors want them to believe. It was not an inviting, embracing introduction to the people's case against Jackson; it was more like a meandering story your friend tells you; a story you stop paying attention to even as it is being told and start wondering why the teller is telling it.
Jurors may be wondering, too, about why this isn't just a simple molestation case instead of a complex conspiracy and molestation case. If prosecutors believe the young alleged victim, and surely they do, then why not bring a straight sex charge against Jackson and avoid all the intricacies of conspiracy law? And why was Jackson alone charged when so much of the evidence seems to suggest that the "un-indicted co-conspirators" engaged in the conduct that prosecutors believe is criminal? For prosecutors, a criminal case is a about answering questions for jurors -- the more questions answered, the less reasonable doubt -- and by that standard alone it was a dismal week for the People.
After opening statements, on Tuesday, the Jackson jury saw and heard the critical "documentary" that aired on network television early in 2003. This is the Martin Bashir broadcast that aired on ABC; the airing of which prosecutors say started the defendant on a rampage of threats, coercion and molestation. There is no doubt but that the video was good for prosecutors. I mean, this is a child molestation case and you have the defendant, on tape, holding the kid's hand and telling the world that there is nothing wrong with sleeping in a bed with young boys to whom he is not related. But the tape, alone, cannot convict Jackson and everyone in the room knew it. Besides, there was so much childishness and kookiness in Jackson's words and conduct on the videotape that jurors ultimately may have a hard time believing he was capable of criminal intent -- or even, for that matter, in his right mind.
Late Tuesday and Wednesday, jurors heard from Ann Kite, who goes by the name Ann Gabriel. If the testimony from her brief time on the witness stand sums up her professional experience she also is quite possibly the world's worst public relations professional. She was hired by the Jackson camp just after the Bashir video aired, had a falling out shortly thereafter, got fired by Mark Geragos, Jackson's former attorney, and now is a witness for prosecutors with bad things to say about Team Jackson. Kite/Gabriel told jurors that Jackson's handlers told her that they intended to make the alleged victim's mother "look like a crack whore" if she made trouble for the King of Pop. Kite/Gabriel also told the panel that she was worried that the family of Jackson's accuser had been rounded up -- "hunted down like dogs" was how she put it -- and brought back to the Neverland Ranch.
Prosecutors hope Kite/Gabriel helps them establish the conspiracy charge against Jackson by depicting his entourage as thugs whose idea of public relations "damage control" were threats and coercion. On cross-examination, Jackson's attorney, Thomas Mesereau got Kite/Gabriel to concede that she had worked for Jackson for only six days, that she had never talked with him or even his true inner circle, and that she has certain business interests that may conflict with Jackson's. I'm not sure she was involved for long enough in this saga, or had close enough contact with the people prosecutors say are Jackson's "un-indicted co-conspirators," to deliver what Sneddon hoped she would.
Next up, on Thursday, was the alleged victim's sister. This should have been the trial's first dramatic moment -- the first time Jackson was face-to-face with a member of the family that prosecutors say he manipulated and then tore asunder. But the young woman by many accounts was not great a great witness. She was brought to the stand to introduce and offer the back story on the "rebuttal videotape" that shows Jackson's accuser and his family saying great things about the King of Pop shortly after the Bashir interview was shown. Prosecutors say that Jackson and his gang coerced the family into saying things on this video that they didn't mean. The defense says there is no way Jackson could have pulled off that feat and that the video speaks for itself -- and shows how truly friendly everyone was to each other at a time prosecutors say the "false imprisonment" and the rest was underway.
On Friday, during the testimony of the young woman, jurors were shown the "rebuttal video." On its face, it seems more helpful to the defense than to prosecutors, much in the same way that the Bashir tape is more helpful to prosecutors than the defense. In the rebuttal video, jurors saw with their own eyes the entire family saying nice things about Jackson. The initial presumption ought to be that they were telling the truth on account of how much Jackson had done for them up to that point (he gave them a car, visits to Neverland, an introduction into the lifestyle of the rich and famous, etc.). One of the key questions of the case therefore is whether the prosecution can overcome that presumption; whether jurors ultimately will believe prosecution witnesses or what they saw in the rebuttal video with their own eyes.
With that in mind, the accuser's sister told jurors that she and the rest of her family were given "a paper of things to say" on the rebuttal videotape -- "just nice things about Mr. Jackson." And much of her testimony focused upon the tense and pressurized atmosphere she felt after the Bashir tape and up to and after the taping of the rebuttal video. Prosecutors want jurors believing that this family said those things on tape in much the same way that American hostages in Iraq are forced to say that the hate America. That's a fairly big leap to ask of the panel.
In the meantime, when it comes to the molestation charge, the alleged victim's sister told jurors that she saw Jackson and her brother go into the start's bedroom alone two or three times for "15-30 minutes, for a while, I don't know the approximate time line." She said she saw Jackson pouring wine for his accuser, who has only one kidney after cancer, and that some in Jackson's entourage told her "to not talk about what goes on at the ranch." Perhaps most importantly, she told jurors that she saw Jackson "hugging and kissing" her brother on the cheek and on top of his head, although she also told the panel that her family tends to hugs and kiss people they've just met. If the conspiracy charge were off the table, and the young woman's narrative were shorter and simpler, this testimony about the interaction between Jackson and his accuser would have been much more dramatic.
Even during the prosecution's questioning, the sister answered several questions: "I don't remember" or "It was a long time ago" or "I was too young to remember." This sometimes can be good for the questioner when a young witness is on the stand -- it shows perhaps a level of candor and lack of preparation that seems consistent with how a young person would handle such a tense moment. But in this case, it begs the question: how could a sister forget such critical things in the life of her brother, events that happened only within the past few years? Mesereau got the young woman to tell jurors that her mother, the second-most important witness in the case, lied to social services officials about the details of a stay at Neverland.
This weekend everyone involved can take a deep breath and prepare for the next phase of the trial, a more mundane if no less important phase. Usually, prosecutors like to start strong so that jurors buy into their case early and therefore view the rest of the evidence in a favorable light. In other words, prosecutors like to get jurors invested in a conviction so that they skew their perceptions toward that result for the rest of the case. I don't think that happened this week. Not even close. And, as the saying goes, you never get a second chance to make a first impression.
CBS News Producer Jennie Josephson contributed to this piece from Santa Maria, California.
By Andrew Cohen