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Malice in Neverland

Attorney Andrew Cohen analyzes legal issues for and CBS News.
Michael Jackson is in serious trouble and he should know it. Whether he actually molested the boy who is accusing him or not, the King of Pop's lifestyle has left him vulnerable to the charge. This circus-like trial we are about to embark upon, like moths to the flame, will be all about whether Jackson can separate himself from his creepy past, his tarnished reputation; his penchant for bizarre relationships with young boys. If he can, he has a chance to remain free. If he cannot, he's doomed.

Even if you simplify People v. Michael Joe Jackson down to its barest essentials, you still get a difficult scenario for the defendant. His lawyers could actually win the trial and lose the case. Jurors could come to believe, thanks to a great effort by Team Michael, that the accuser and his family are veteran "celebrity hunters" who saw Jackson for what he is; an easy and vulnerable mark. And yet those same jurors still could reasonably believe the narrative offered by the alleged victim and his brother. The two wildly different stories that jurors will be presented with in some ways are not mutually exclusive. And in this case, if there is a tie, it would go to the state.

Why? Because the family of the accuser can be sleazy and good-for-nothing and out for money and Jackson still could have molested that boy at his Neverland ranch. The boys' mother could be nuts and negligent and conniving and irresponsible and still Jackson could have plied the alleged victim with liquor and then taken advantage of him. The "extortion" that the defense claims its client is a target of could have taken place after the criminal assault. In a case involving sex with a child -- even the kind of "unilateral" sex that allegedly took place here -- jurors aren't going to be looking for ways to even out the scales of morality. If they believe that Jackson was playing with a naked boy on his bed they are going to convict him whether they loathe the boy's family or not.

The boy was in Jackson's home. As a visitor. As a guest. And then apparently as some sort of regular feature in Jackson's life. It appears that he was lured into a lifestyle that few parents would want for their kids. It will be almost impossible for Jackson's attorneys to deny that much of the prosecution's case. And if jurors are taken along that far the next steps will not seem as steep as they otherwise would be in a case against a different defendant. After all, the alleged crime fits in many ways what Jackson has said publicly about the influence and effect of young boys in his life. This is not a case where a respected preacher gets caught messing around with the mayor's wife. This is a case where the defendant's admitted fetish ties directly to the charges against him. And that's why Jackson's in trouble.

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Did the King of Pop give the sick boy alcohol? Did he show him nude pictures? Did he parade around in the nude in front of the boy and his brother? Did he talk to the boy about the need to learn how to masturbate? These core allegations simply won't be as much of a leap for jurors as they might have been in a case where the defendant's name was "Jackson Michael" and no one had seen him say on television that he likes to sleep with boys in his bed. It's a slippery slope in favor of prosecutors. Sure, jurors said that they would leave their preconceived notions about Jackson out of the trial. But how many do you really think can or will?

I have read through the transcript of the grand jury testimony that purportedly forms the basis of the case against Jackson. It is not without its holes for prosecutors. Obviously, the case will hinge on the credibility of the young witnesses against Jackson. Their stories are disturbing. As a narrative alone their testimony is compelling, despite the lame efforts of prosecutors to bring it out before the grand jury. (No doubt, prosecutors should have known that this secret testimony would soon become public in a case such as this, where there is more sleaze outside of court than we'll ever see inside it). Like a made-for-television movie, you can foreshadow the end; innocent boy gets wrapped up with creepy guy, seduction follows, cut to bedroom scene. It's gross.

If it's true. For as strongly as prosecutors will try to portray Jackson as a predator with a taste for weak prey, Jackson's attorneys will go after his accusers as vultures who would tarnish a man's life and reputation for a few million dollars. Unfortunately for prosecutors, the family of the accuser, like Jackson, do not come into this trial with a clean past. They, too, have reputations they will have to live down during the next few months. Since Jackson almost certainly won't testify, we may find ourselves from time to time thinking that the accuser and his family are on trial rather than the pop star. Can't wait to see Nancy Grace go berserk the first time that happens.

Prosecutors have to hammer home to jurors the idea that where there is smoke, there is fire; that child molesters do precisely the sorts of things Jackson is accused of. They have to convince the panel that Jackson's blasé attitude toward inappropriate child relationships isn't itself a sign of childish behavior but instead a criminal defect in his character and judgment. They have to concede the faults in their witnesses and yet establish that their stories cannot just be mere coincidences and that there are too many provable details for the stories to be false.

Jackson's lawyers, on the other hand, have to remind jurors that sometimes these sorts of allegations are trumped up and that, when they are, it is usually by people like those on the other side of the fence. The defense has to figure out a way to destroy the accuser's credibility without seeming to destroy the young man himself -- a difficult task since he will appear so sympathetic when he first takes the stand. One of the hardest things a lawyer ever has to do in court is undermine a witnesses story without coming off as a bully -- and yet that's precisely what Team Michael has to do.

This case is the perfect storm of celebrity justice. It has Hollywood. It has one of the biggest recording artists ever. It has lewd allegations involving children and wild and lavish lifestyle choices. It has rich versus poor and white versus black. Before the first witness has testified, it already has been transformed, altered, by the media coverage of it. Ten years exactly after the O.J. Simpson murder trial changed the way people look at judges and lawyers and witnesses and victims and defendants, a new cast has gathered to offer an updated version of law and justice in America.

I expect a long, nasty trial. I expect the trial judge will have to endure moments of great frustration and anger. I expect both sides to leak a great deal of information to journalists covering the trial as part of the public relations war we've seen since before Jackson even was indicted. I expect that some of the jurors who were so eager to serve will be sorry that they did. I expect that the defendant at some point will say or do something out of court that harms his chances inside. I expect the coverage to be outrageously overblown. And I expect that I will want to wash my hands and change my clothes after leaving court every day.

By Andrew Cohen

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