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Prosecution Rests, Uneasily

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

After two months of twists and turns, stops and starts, grins and giggles, pajamas and protests, and many moments of "ick"-inducing testimony, the prosecution's case-in-chief against Michael Jackson now is over.

It is as strong as it is ever likely to be in advance of the defense witnesses who are to follow. Right now, theoretically, there should no be reasonable doubt in the minds of the jurors who have sat patiently and listened day after day to testimony in this famous child molestation and conspiracy trial. If District Attorney Thomas Sneddon doesn't have the panel on his side now he shouldn't presume that he ever will. For prosecutors, this is as good as it gets, to use a Hollywood phrase, and it is not too much of a stretch to say that it doesn't appear to be nearly good enough.

The case against Jackson so far has been supported by the motliest collection of witnesses I have ever seen assembled in one case. Like characters from a Damon Runyon story, many of them have stepped out from hiding places and shadows, with dark backgrounds and shady motives, to bear witness against the King of Pop. Jackson may be a freak but the people Sneddon has relied upon to put him in prison aren't exactly Pat Boone, either. With the exception of the mother of one of Jackson's earlier accusers, and perhaps two or three other, lesser lights, not a single vital prosecution witness came to or left the stand without serious and substantial credibility or accuracy issues. Not a single one.

You know you have a weak prosecution case when the journalists and lawyers covering it are asking why some of the witnesses, including those in the accuser's family, haven't been indicted as well. And you know you have problems as a prosecutor when the defense keeps scoring more points with your witnesses than you have. And yet that happened with stunning frequency over the past two months. The case against Jackson seems to have so many holes in it right now that Thomas Mesereau, the lead defense attorney, could call not a single defense witness and still have a reasonable belief that the jury would acquit his client. He won't do that, of course, but if he didn't I'm not sure I would blame him.

That bad? Pretty much. The alleged victim in the case was a terrible witness, surly and combative on the stand, with the details of his story changing from telling to telling. He is not even sure how many times he says Jackson molested him and he told jurors that he is not the type of person who allows others to take advantage of him. The accuser's mother, meanwhile, was even worse on the stand, playing to jurors with precisely the sort of acting skills and drama that Jackson's lawyers say she used on the defendant and other celebrities as she trawled for money among Hollywood's B-List.

Moreover, there is precious little physical evidence linking Jackson to a crime, especially if you do not count the adult magazines that the defendant legally had in his home. Meanwhile, the mother of two of Jackson's children, called by prosecutors to help them link together the conspiracy charge against him, did the opposite. Debbie Rowe says that Jackson was isolated from the men around him, the men with whom the alleged victim and his family mostly dealt — the men against whom conspiracy charges were not brought. If those men didn't engage in a conspiracy despite all of their proven actions, jurors could reasonably ask today, then how could Jackson have done so? And if prosecutors didn't charge these other men, the jury might add, then why are we contemplating convicting Jackson?

Without a crucial ruling early in the case, the one that allowed jurors to hear about prior molestation allegations against Jackson, the trial probably would be over already with a defense win. And even with that huge boost for prosecutors I'm not sure they connected all of the dots. It's seems reasonably clear now that prosecutors lumped the conspiracy case against Jackson in with the molestation charges because they needed the conspiracy evidence to convince Santa Barbara County Court Judge Rodney S. Melville that Jackson had engaged in a pattern of behavior in the past that warranted the use of prior-act witnesses during this trial. But most of the witnesses who paraded before jurors as a result of the "pattern evidence" ruling were just as shaky and dubious as were the alleged victim and his family.


Some of these witnesses, to be fair, were somewhat stronger, testifying about alleged Jackson molestation that is similar to the conduct the accuser in this case says occurred. For example, jurors heard allegations that Jackson had frolicked nude with one young boy and had engaged in a sex act with him. But were those few good witnesses enough? Is their strength in numbers for prosecutors? Sure, but only if the witnesses generating the numbers were believed by jurors and also believed to be relevant-all of these "pattern" witnesses, remember, were testifying about long-ago events that did not at the time generate criminal charges. And, remember, this is the high-water mark of the case against Jackson-from here on in jurors will hear from defense witnesses whose intentions will be to undercut what the DA so far has wobbly built.

Prosecutors have clearly proven that Jackson had the opportunity to molest the young man in question and they have established that Jackson has a fetish for the young male form. They have established that there were things that went on at Neverland, involving alcohol, which should not have been countenanced. They have convincingly showed that there was an effort on the part of the Jackson Camp to push the accuser and his family away even before the alleged molestation is said to have occurred. They have proven that Jackson and his entourage tried to control and manipulate a public relations message following the airing of that disastrous network special about Jackson in which he copped to sharing his bed with young boys. They even have proven that there exists a pattern in the relationships Jackson has had with all of the people now coming forward to testify against him.

I am just not sure that these proven facts add up to a crime or (more precisely) that jurors will add them up and find Jackson guilty. I am not sure that this "pattern" that prosecutors hope will carry the day for them actually exists. Is this trial about Jackson's pattern of molesting children and then buying their silence? Or is this trial about Jackson's pattern of being victimized by families who knew a true sucker when they saw one? There is about as much evidence of the latter as there is of the former and that alone, in the calculus of the law, ought to generate reasonable doubt for at least one juror.

And yet. You just never know what jurors are thinking during the course of a trial. This is a child molestation case, after all, involving a creepy man who already has shared with the world his penchant for sleeping with young boys in his bed. Since Jackson himself has taken jurors this far along the road to a molestation conviction, is it really that much of a stretch for jurors to carry themselves the rest of the way no matter how lame the witnesses have been? Why exactly won't jurors say to themselves: either all of these other people are lying or Jackson is and it is just makes too little sense to believe Jackson and no one else? Jackson could win the battles at trial but lose the war-and be convicted despite the paucity of good evidence against him.

So here is a central question going into the second half of this trial: have jurors switched the burden of proof in their own minds away from prosecutors (who are supposed to have it) and over to Jackson based upon his past conduct and his reputation? Are they now looking to the defense witnesses to overcome this burden? If the answers to those questions are yes, Jackson is still in big trouble despite all of the problems prosecutors have had in putting on a coherent case. Especially if Jackson does not testify in his own behalf, it would be hard for the defense to prove a negative; to prove that their guy didn't do all those things prosecutors say he did. That's why the law puts the burden where it is-on the government.

I have tried from time to time during the course of the trial to push aside whatever objectivity I would like to think I can muster and to give prosecutors the benefit of every reasonable doubt about every witness and every important fact. And when I do that (even though the law requires the opposite in a criminal trial) I come down 50-50 that Jackson is guilty of the molestation charge and even less convinced that he is guilty of conspiracy. In other words, even reading the evidence in a light most favorable to Sneddon and Company, I think they have put on a memorably weak case, one that ought to raise serious questions about prosecutorial strategies, tactics and even ethics if Jackson wins.

But, in spite of all this, prosecutors still may win. Plenty of weak cases end in convictions for a variety of reasons. If prosecutors do, however, it won't be because they overwhelmed jurors with proof or because they were smarter or better than the defense or (especially) because their witnesses were nice and noble and credible. If Sneddon and Co. prevail here, it will be because jurors have concluded that where there is smoke there must be fire; that no innocent man would have so many of the same sorts of serious allegations tossed his way. Mostly, though, if this lame case generates a conviction, it will be because jurors no longer want to see any more children anywhere near Michael Joe Jackson, a ghost of a middle-aged man living in a twisted, pre-teen fantasy world, who will then have no one but himself to blame for his troubles.