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  1. 1. LESSONS FROM THE MICHAEL JACKSON TRIAL by Anne Melani Bremner "Any case properly prepared and tried can be won." Hon. Jack P. Schofield, Ret., from our firm's "Schofield and Stafford" era. The Michael Jackson case was won by excellent preparation and lawyering by Thomas Mesereau (who was nothing short of "mesmerizing"). The trial ultimately became a three- ring circus-the circus outside of court, a circus inside the court and a circus in the mind of the accuser's mother, who ultimately became the fulcrum of the trial and the downfall of the prosecution. The netherworld of the Neverland trial can be instructive to trial attorneys everywhere. PART 1: WHY THE PROSECUTION LOST Finding Ne ve ria nd- The Beginning of the End and the End of the Beginning "I can't help it if I wanted to" Michael Jackson Off the Wall. The Prosecutor Was Too Personally Involved - Finding Neverland. The overzealous prosecution of the Michael Jackson case can be compared to that of the prosecutor in Victor Hugo's Les Miserables- Thomas Sneddon's near obsession with Michael Jackson invoked images of Inspector Javert's pursuit of Jean Valjean. Like Javert, Sneddon seemed willing to chase Michael Jackson to the ends of the earth, regardless of the substantive bases for criminal charges. For example, Thomas Sneddon executed over 100 search warrants at the Neverland Ranch in Los Olivos, California. Compare that with a handful of search warrants that were executed at the Parker Ranch in connection with Charles Manson's multiple and horrific homicide charges. During the course of the trial, Thomas Sneddon displayed several hundred images of legal pornography depicting women that had no bearing on the pedophilia charges. Sneddon also tried to make Michael Jackson out to be an evil monster when in fact, at worst, he was a troubled pedophile (if one were to believe the prosecution charges). Finally, Sneddon laughed and scoffed and gloated during public statements about Jackson. Everyone in Santa Barbara County and the Valley knew that Thomas Sneddon had been pursuing Michael Jackson for well over a decade without success prior to this prosecution. Michael Jackson actually wrote a song about Tom Sneddon that translated to "Tom Sneddon is a Cold Man." Fans sang it every day outside of court, and displayed pictures of a devil- horned Tom Sneddon and pictures of Michael Jackson as the Messiah. Despite attacks on Sneddon's personal involvement by the defense and motions that he actually try the case (apparently so they could attack him further), Sneddon stayed front and center in the prosecution of the case.
  2. 2. The Opening Statement - Nightmare in Neverland. "You gotta be starting something." Michael Jackson, Thriller It has been stated that 800/0 of all jurors make up their mind in opening statement and do not change their minds, regardless of the evidence produced at trial with respect to their initial conclusions. Thomas Sneddon's opening statement was disorganized and weak. It contained personal attacks, and had virtually no visual aids. The prosecution did not get a pretrial ruling from the Court on 1108 pedophilia pattern evidence such that they could make sense of that evidence prior to the introduction of evidence. My colleague at CNN, Jeffrey Toobin, opined that Thomas Sneddon's opening statement was the worst that he had ever heard. Many publicly agreed. The "Mother of All Mothers - the Attempted Extortion of Peter Pan by a Family of Actors and Con-Artists" "You'd do anything for money. " Money, Money, lie for it, spy for it, kill for it, die for it." Michael Jackson, "Money" from History CD The defense successfully argued that if you cannot believe this family beyond a reasonable doubt, you must acquit. And the reason that the jury acquitted, for the most part, was because they did not believe the accuser's mother, nor did they believe her family. The mother was only called to testify to support the conspiracy counts (which were demonstrably weak). Had she not been called to testify, the resulting acquittal might well not have ensued. The mother took the Fifth Amendment before the jury on Perjury and Welfare Fraud. On direct examination, she snapped her fingers at jurors, asking them to pay attention to her, and accusing them of not doing so. (Remember Juror Number 5 paraphrased the reactions of the jurors in the now infamous sound bite: "Don't snap your fingers at me, Lady"). When asked about how she would have escaped from Neverland, and whether that would be via a hot-air balloon, she snapped, "That's just one of the ways." She quibbled about whether she was allowed during the time that she was allegedly falsely imprisoned to have a "full body wax," or whether it was a partial body wax. She admitted that she had access to the police during the time of false imprisonment, and left the ranch on many occasions. She wanted to go to Rio De Janeiro with Michael Jackson, traveled with him, accepted his gifts, and used his credit cards. She saw no evidence whatsoever that her son was being molested by Michael Jackson. She filed a false claim against J.C. Penney, alleging that she had been sexually assaulted by them and beaten, and was paid $165,000.00 by them. She failed to report this money to the welfare authorities while she was receiving full welfare. She lied on welfare forms under penalty of perjury. She lied under oath during the course of the J.e. Penney case, saying that her husband never beat her, and then during the course of her dissolution alleged under oath that her husband had beat her. She caused her children to lie, saying that at least one was molested by their father, and told a paralegal in the firm that assisted her that she lied and had her children lie. She told the paralegal that if the paralegal were to repeat that to anyone, she "would be killed by the Mexican mafia." She said she wanted her children to be actors and actresses, and that she needed to help get them money through Michael Jackson. She also made newspaper appeals for money for her son's cancer treatment, when in fact that treatment was covered by insurance. The newspaper editor testified that she believed the mother was a con artist. She also got money from celebrities such as Masada, George Lopez and Louise Palanker, purportedly for cancer treatment, and spent it on herself. She even took money from charitable sources meant to benefit her cancer-stricken son, and
  3. 3. spent it on a breast augmentation and a tummy-tuck for herself. To gain sympathy and money, she claimed to many that she lived in a barn with chickens. Michael Jackson arguably was just the next extortion target in a series of many from a woman who "had always relied upon the kindness of strangers," not unlike Blanche Dubois in Tennessee Williams' Play, "A Streetcar Named Desire." A videotape was played six times during the course of the trial, during the mother's testimony and the testimony of her children and of other witnesses, that was created during the time of the alleged false imprisonment. In it, the mother and children waxed eloquent and rhapsodic about Michael Jackson: "He is our father-we lived as a family off of a box of cereal and he rescued us." "Jackson is God." This family would have had to be Academy Award-winning actors to have falsely praised Jackson in this manner. This video was made at the same time the child welfare authorities interviewed the entire family, when the entire family denied any molestation whatsoever. A Trail of Tainted Witnesses "I don't trust anyone except for my mother, and I don't trust her half the time." Michael Jackson. Never has there been such a parade of tainted witnesses (save for potentially disorganized crime cases). The prosecution called witness after witness against Michael Jackson who: (i) had sued Michael Jackson, (ii) owed Michael Jackson millions of dollars from jury counterclaim verdicts against these witnesses who had been found guilty of stealing from Michael Jackson, (iii) had sold their stories to the tabloids, and (iv) had been fired by Michael Jackson. It was an incredible parade of tainted witnesses. Three witnesses for the prosecution took the Fifth, including a travel agent who was accused in a federal investigation of unlawful surveillance and profiting of Jackson, and a former employee of Jackson who robbed a Jack-in-the-Box during the course of the trial and ended up in custody in Las Vegas. 1108 Pedophilia Pattern Evidence Was Mishandled and Mispresented- "Make or Break 1108." "Once a Pedophile, Always a Pedophile" Of the five alleged other victims, the one "victim" who did testify for the prosecution was not believed by the jury. His mother had sold her story to the tabloids. He had not disclosed the molestation until the time of trial. The jurors were overheard laughing purportedly after hearing his testimony, "He tickled me, Michael Jackson tickled me, boo hoo." Very little evidence was presented during the course of the trial, other than that the legal pornography (which the defense successfully argued could not be called "pornography"). There was little evidence pertaining to other victims (again, the defense was able to successfully argue that the word "victim" could not be used during the course of the trial). McCauley Caulkin, like other alleged victims, sang Michael Jackson's praises, and denied abuse.
  4. 4. The Prosecution Did Not Their Witnesses: "There was blood on the Dance Floor." Michael Jackson "Blood on the Dance Floor" from the CD History in the Mix. The mother's testimony was a disaster for the prosecution. Thomas Sneddon sat in the front row of the courtroom with his head in his hands while she testified. The most ill-prepared witness was Deborah Rowe, the former wife of Michael Jackson. She testified that Michael was a wonderful father, that there was no conspiracy in the case save for one against Michael Jackson where he was the victim: a conspiracy of opportunistic vultures who make money off of making him look bad and taking advantage of his naivete and childlike trust. She also testified that the prosecution was overreaching, that Michael Jackson was wonderful with children, and that he was a child at heart. Even after she went to dinner with the prosecutors, the next day her testimony was even worse for the prosecution, and she slammed their case every chance she got. She characterized all of the prosecution's co-conspirators of Jackson people who made millions and millions of dollars off this case by pointing a finger at Jackson. The accuser and his siblings were not prepared to testify. In fact, the accuser was caught in many demonstrable lies while on the stand, and forgot important facts that had been outlined in opening statement. In California, the jury is instructed, "If you find that is witness had willfully lied before you, you are entitled to disregard all of their testimony." At the end of the day, the jurors requested a read-back of the accuser's testimony, and found that he had lied willfully before them, so they disregarded all of his testimony. Once the case was gutted thusly and by the mother's lack of credibility (wherein the jury found that she was a liar who caused the children to lie on multiple occasions, including in the accusations against Michael Jackson), the game was over. The prosecution introduced the Martin Bashir documentary. This allowed the defense to introduce the outtakes, thereby putting forth sympathetic "testimony" of Michael Jackson, where Michael Jackson did not have to take the stand and face the rigors of cross- examination. At the outset of the trial, the prosecution introduced Martin Bashir's documentary wherein Michael Jackson said that he shared his bed with children, and it was not sexual, and it was ignorant to believe that he had sexual interest in children. In this documentary, Jackson is shown holding hands with the accuser in this case. However, on balance, the documentary had more to offer the defense than the prosecution. First, it contained footage of Michael Jackson singing everything from Thriller to his hits from his childhood Jackson Five days. Michael Jackson was not only tapping his foot, the jurors were tapping as well. And, it allowed the defense to put outtakes of Michael Jackson before the jury, where he explained his view of the world and this case. He stated that he was the patron saint of children, that he loved children, that it hurts to be him, that he is misunderstood, that he is taken advantage of, that he loves only animals and children because they understand him, etc., etc. This "testimony" was not cross-examined. The prosecution did not fi out enough in the course jury selection "Michael Jackson is just like us." - Juror Number 5 In any high-profile case, the prosecution should find out the jurors' attitudes about the instant case. The prosecution can simply give the jurors a sheet of paper and ask them to record everything they have ever heard about the case. If this is done, the prosecution can glean from the answers whether those jurors have any kind of attitude for or against the
  5. 5. prosecution in the underlying case. In addition, in this case, the prosecution did not find out enough information about whether these jurors intended to write books about the case. We now know that five jurors wanted to write books, and one was working on a book deal during jury selection. This of course will influence the way jurors vote in a case. Wanting to write a book it generally means they are siding on the side of the celebrity. The Prosecution did not Combat the "Hopeless but not Serious" Factor-the Neverland Celebrity Animal Party and Pajama Day. "Life doesn't imitate art, it imitates bad TV." Anonymous The trial throughout was in many ways was just plain funny. Starting with the parade of comedians who testified for the prosecution on Jay Leno- George Lopez, Jaimie Masada, and Louise Palanker - and ending with Michael Jackson's description of wanting to have a "celebrity animal party" for his chimp Bubbles and for Cheeta, Lassie and Benji the dog. The judge himself was funny, and kept the jury in stitches throughout the trial. The problem is when the entire trial is truly funny, the seriousness of the charge can be lost. Many opined that Michael Jackson showing up in his pajamas one day was devastating for the defense. I always said on the air that I thought it was brilliant, and great for the defense. This is because he looked cute. These were not Hugh Hefner pajamas with slippers, these were little kid pajamas with little-where one could imagine bunny-slippers. There he sat before his mom and dad in front of the jury wearing his pajamas all day. Of course, every night on Jay Leno there was something about Michael Jackson, including one night when Leno showed up in his pajamas, his Sponge Bob T-shirt and slippers, accompanied by an umbrella carrier. Michael Jackson's personal magician, "Majestic," was in the courtroom, together with all kinds of fans in funny outfits who voiced responses to the testimony. Outside of court, there were Michael Jackson impersonators with umbrella holders and Michael Jackson puppets. The Daily Show aired a spoof on the trial, as did Jay Leno and Jimmy Kimmel, on an almost-nightly basis. On the day Jay Leno testified, he later joked in his monologue that he had stolen the judge's gavel. The next morning, when the judge took the bench he looked around the courtroom and queried "has anybody seen my gavel?" The jury erupted into gales of laughter, evidencing the fact that they had watched Leno the night before (and probably throughout the trial). Michael Jackson's cause was helped by amusements ranging from his chimpanzees "chimps - those chimps, you know they love snacks" to throwing popcorn and pop on Macaulay Caulkin and riding go-carts with lO-year-olds, to entering on the red carpet every day with an umbrella holder and an entourage and fancy costumes. Because of the mother of the accuser's family had attempted on numerous occasions to bilk money from legions of comedians who testified in the case, culminating with the testimony of George Lopez, where each of the comedians basically did standup comedy on the stand in front of the jury. A reporter from New York and I had just one gesture at each other during the course of the trial, which was to throw our arms up and say "whee," because it was all about carnival rides, comedians, celebrity animal parties and crazy happenings inside and outside of court. Robert Musil had a wonderful line in "The Man Without Qualities": "It is hopeless but it is not serious." That really describes the Michael Jackson trial: it was a circus. It wasn't really a tragedy as it was presented to the jury, it was a comedy.
  6. 6. The Prosecution Had Too Many Misfires in the Twilight Zone of the Michael Jackson Trial. "Let the circus begin." P.T. Barnum nTake a look at yourself and then make a change." Michael Jackson "Man in the Mirror" from "Bad" Watching the prosecution was like watching misfire after misfire as witness after witnesses stated the opposite of what was anticipated by the prosecution. And, the prosecution did not present a systematic case or consistent themes to the jury. It appeared that they just decided to "throw it all up there and see what happens," and by virtue of their attitude of indignation and arrogance, convince the jury of the facts about which they were convinced that would lead to a conviction of Michael Jackson. The prosecution also failed to understand that the burden of proof is far higher when one is prosecuting a celebrity, and that the jury will want, in this day of CSI programs, some concrete evidence upon which to hang their hat if they are to convict a celebrity. There was no such corroboration and physical evidence, nor was there corroboration and believable testimony. During my briefings as legal expert by the International Press during the course of the trial, my most consistent quote was Dorothy Parker's "what fresh Hell is this," as each day brought more misery for the prosecution during the presentation of their case in chief. The Prosecution Bored the Jury nGh Baby give me one more chance" Michael Jackson, "I want you Back" from "The Jacksons." Trials should be theater, but they shouldn't be bad theater. In what only can be described as reminiscent of the O.J. Simpson trial (the prosecution's presentation of DNA, other evidence, and testimony from medical examiner), this prosecution team spent day after day on minutia of telephone records and fingerprint evidence. They also bored the jury by presentation of irrelevant pornography and other evidence. It was shocking that when the prosecution did go through all the foundational requirements for the introduction of evidence, they just continued it for day after day to where the foundation of the evidence was completely undermined. And, when they would bring in bag after bag of evidence and go through the "chain of custody" in front of the jury (instead of having that done pre-trial or by stipulation), they never did open the bags to show the jury what was in them. I put in my notes during those days "it's in the bag," and it never came out. Even male-based "pornography" was not shown to the jury during the prosecution's case in chief. Lessons were not learned from the O.J. Simpson trial by these Southern California Prosecutors. Next - See Part 2: Why The Defense Won