Attorney Andrew Cohen analyzes legal issues for CBSNews.com and CBS News.
The Michael Jackson trial has turned into a case about patterns. Prosecutors Monday told jurors that Jackson had a habit of plying young boys with wine and turning his Neverland Ranch into a palace of debauchery. Defense attorneys told the same jury that it is the alleged victim's mother who has the relevant pattern here; a habit of trying to extort money from celebrities by using her children as bait.
If you believe prosecutors, Jackson "de-sensitized" the adolescent morality of his alleged victim gradually, over time, by giving the young man alcohol, showing him sexually explicit pictures, and talking to him about masturbation. If you believe Jackson's attorney, the mother of the accuser settled on Jackson as a "vulnerable" and "easy mark" for extortion and blackmail after trying and failing to "hustle" other celebrities like Jay Leno, Adam Sandler, and George Lopez.
Both sides suggested to the jury that they have plenty of evidence to back up their theories about what happened to whom, and why. Lead prosecutor Thomas Sneddon, mindful that his "clients" have significant credibility problems, took pains during his opening remarks to mention corroborating information that he says bolsters the specific allegations made by the alleged victim and his family. Likewse, lead Jackson attorney Thomas Mesereau told jurors that there is plenty of external evidence that shows how the accuser's mother tried to conceal her improper activities from Jackson and virtually everyone else whom the defense says she had tricked into helping her.
If style mattered over substance, and sometimes it does in court, than the defense has the advantage after the first day of the trial. Sneddon's opening statement was plodding and included way too many dates, names and petty details. Moreover, it meandered willy-nilly back and forth along the timeline that jurors will need to grasp if they are to convict Jackson. By the end, the monologue seemed like a book about Russian history, where all the names are so jumbled together and unfamiliar that they lose most of their meaning. That's not a recipe for a good start to a long criminal trial.
Now, there was only so much Sneddon could do with a case that involves so many different characters, most of whom he says were acting at Jackson's behest. But surely Sneddon could have simplified the presentation more than he did. There will be plenty of time in this case to offer details and nuance and complexity-- opening statements should be a time for clarity, for themes, for sucking jurors into a compelling story that they will keep with them during the long days ahead. Sneddon obviously didn't lose the case Monday-- I've seen plenty of terrible opening statements precede big trial victories-- but he didn't take full advantage of his opportunity, either.
Mesereau, on the other hand, was as good as advertised. He was forceful and direct and much easier to listen to than his counterpart. He stood up early in the afternoon after taking his cue from the judge and immediately told jurors that the charges against his client are "fictitious and bogus and they never happened." Then, as if those words weren't enough to offer jurors Jackson's view of the evidence, Mesereau added: "The charges are "fake, silly, and ridiculous." At that point, Sneddon objected and Santa Barbara County Court Judge Rodney S. Melville told Mesereau to stop arguing before the evidence came in.
Mesereau is smooth. But he may have promised jurors more than he can deliver. He kept telling the panel that Jackson would "prove" all the bad things the defense says about the alleged victim's mother. "I am going to make some promises and meet them," he said. "I'm going to prove exactly what I'm going to tell you now." Jackson's attorneys don't need to prove a thing, of course; they do not have the burden of proof in a criminal case. Clearly, Mesereau wants to lay down a marker and signal jurors that his evidence of Jackson's innocence is stronger than the prosecution's evidence of his guilt. But you should lay odds that Sneddon will remind the juror of Mesereau's promises if the defense isn't able at trial to make good on those promises.
So what do we know now that we didn't a day ago? Plenty. Sneddon portrayed Jackson as a Svengali, a master manipulator of both child and parent, who fed his base needs with a level of patience and detail that would help explain in more innocent ways how he became the King of Pop. Just look at some of the words and phrases Sneddon used to describe Jackson and his alleged crime: Exploitation. Manipulation. Train wreck. Controlled. Isolated. Lies. Deceit. If you believe prosecutors, Jackson acted like a grand mobster in this case, directing his capos to put the muscle on the alleged victim and his family.
Hearing the prosecution's opening, I couldn't help but think whether it is indeed possible that a man who was so obsessed with his own appearance that he completely changed it could turn that level of control and manipulation outward, toward a young boy. "That's a beautiful thing," Jackson said in a television interview when asked why he thought sleeping in a bed with young boys was a good idea. "It's very loving... It's very sweet." Ick, right? Several jurors cringed when they heard this and for a moment I thought to myself: why aren't we seeing an insanity defense in this case?
Certainly, until his recent legal run-ins, Jackson was a master at the art of message control-- an allegation at the core of the prosecution's case. And I'm sure that a juror or two is asking the question tonight: why would Jackson have gone through all this tumult with the accuser and his family if he were not trying to hide something he didn't want publicly known? Why would he need to engage in damage control if there weren't any damage to control? And why didn't he cut his ties more quickly and more completely in 2003 when it became clear that any relationship with the family was more trouble than it was worth.
Flip that around and you get one of the questions Mesereau already has suggested jurors ponder as they wade into the case. If Jackson was as bad as prosecutors say, why did the young accuser's mother not protect him more? Why did she allow him to continue to stay at the Neverland Ranch even after she knew, at a minimum, that Jackson was giving the young boy alcohol l-- a boy who lost a kidney to cancer. Even during Sneddon's story there were plenty of points along the way where the family of the alleged victim could have exerted more influence over the fate of the boy. And where were the police? Why didn't the family get the cops involved sooner?
Mesereau told jurors that he has the answer. He told them that the accuser's mother was a con woman; a professional victim who tried to get welfare even as she spending a large settlement she received from J.C. Penney. Mesereau told jurors that Mrs. Alleged Victim tried to get celebrities to pay for medical expenses for her son that her husband's insurance already had paid for. Jurors were told that in an effort to scam as many people as possible she kept an apartment solely for the purpose of showing people that she was poor. If you believe Jackson's side, he was wildly innocent and naïve and the victim himself of a conspiracy.
Opening statements aren't even over and already jurors have two wildly divergent stories to ponder. Was Jackson predator or prey? Was he a sleazy gangster or a sap? Did his odd penchant for all things childlike turn him into a pedophile or simply blind him to a couple of kids on the make? You can bet that the jury is wondering about all this as their heads hit the pillow after Day One of the latest Trial of the Century.
By Andrew Cohen