The Not Guilty Verdicts
By JONNA SPILBOR
The jury in the Michael Jackson child molestation case has spoken, acquitting the pop star on charges that the star molested a teenage cancer survivor who briefly resided with him between 2002 and 2003.
Jackson was cleared of ten charges in all. They included four counts alleging he molested, or attempted to molest, the then 13-year-old accuser; four counts alleging he’d plied the boy with alcohol; and one count alleging he’d conspired to hold the boy and his family hostage at Jackson’s sprawling Neverland Ranch
The case began with a confident forty-six-year old Jackson dancing for fans on the roof of an SUV. But it concluded with a sullen slip of a man shuffling slowly away from the courthouse; Jackson seemed not jubilant to have won his freedom, but exhausted and spent.
So what happened? Is Jackson a wealthy celebrity defendant who was able to buy freedom for a price? Or is he a product of a justice system that, on occasion, actually works?
In this column, I will discuss how the case against Michael Jackson may indeed go down in history — not as a case that went wrong, but one that went right.
The verdict essentially vindicates the King of Pop, ending what has been described as a long-standing vendetta between Tom Sneddon, the Santa Barbara District Attorney, and Jackson himself. And it resolved this vendetta the right way: In Jackson’s favor.
When It Comes to Evidence, Quantity Can’t Make Up for Lack of Quality
The evidence against Jackson was copious in quantity, but very poor in quality, and that’s what led to the jury’s acquittal.
There was virtually no physical evidence. There was no chilling confession. So the prosecution based its case on testimony – calling eighty-five witnesses, and dragging in allegations of molestation that were nowhere to be found in its indictment.
The prosecution’s case thus turned on the credibility of those who testified. And on credibility, the case was lost: When jurors addressed the awaiting cameras, in the hours after the verdict was returned, their message was consistent and clear: They didn’t believe the key prosecution witnesses, particularly the two whose testimony was crucial: the accuser and his mother.
The defense successfully portrayed the Arviso family as a family of grifters who exploited the boy’s illness to shake down celebrities for money. The accuser’s mother, Janet Arviso had to admit on the stand that she’d lied under oath to bolster her damages in a previous civil case against retailer J.C. Penney – a case in which she’d collected more than $152,000.
In that case, Arviso had alleged that security guards had sexually abused her and her son during a shoplifting incident – causing her specific injuries. But defense attorney Thomas Mesereau Jr. persuasively argued to the jury that these injuries were caused not by the guards, but rather by Arviso’s abusive ex-husband.
And it wasn’t just J.C. Penney that Arviso cheated, according to the defense; it was also the State of California – and thus, in a sense, the twelve taxpayers sitting in the jury box!
Mesereau showed that Arviso had failed to report her $152,000 settlement on a subsequent application for welfare benefits. When questioned about the matter, Arviso asserted her right to refuse to testify under the Fifth Amendment – which applies only when one fears criminal prosecution. No wonder Arviso took the Fifth: Failing to report income on a welfare application, signed under oath, is a felony in California.
On the whole, it would have been a naïve and gullible juror who swallowed Janet Arviso’s testimony whole. And even if jurors were inclined to believe Arviso’s testimony in part, the required jury instruction – used in all California criminal cases – as much as warned them to be cautious.
It said: "A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars."
This instruction may have hurt the credibility of the accuser too. During the defense case in chief, Mesereau presented evidence that the accuser’s mother had coached her children to lie in the J.C. Penney case, going so far as to send her children to acting school to make them better storytellers under oath! With evidence like this, a jury would have been hard pressed to believe the accuser’s testimony beyond a reasonable doubt. And the instruction was clear: If you feel a witness is lying under oath about a given issue, think seriously about whether you can believe him on other issues.
As the jury instruction indicates, testimony is only as reliable as its source – and that’s what killed the Jackson prosecution. Jurors properly evaluated the accuser’s testimony and demeanor, as well as that of as his mother, and concluded that these key prosecution witnesses were not to be believed – or, at least, that their testimony was shaky enough to create reasonable doubt.
Why the "Prior Bad Acts" Evidence Hurt the Prosecution, Rather Than Helping It
The prosecution seemingly tried to make up for the shaky credibility of Janet Arviso, by throwing more evidence at the jury – "prior bad acts" evidence, to be specific. As I discussed in a prior column, this evidence is admissible in California if the judge so rules.
But this additional evidence didn’t bolster the prosecution’s case; it sunk it even further.
Prosecutors attempted to paint Jackson as a pedophile by proffering evidence that Jackson had allegedly molested five other boys over the past thirteen years. But to try to prove this, they relied, again, on testimony the jury was unlikely to find credible, to say the least.
This testimony was almost entirely provided by witnesses who, by all accounts, were former disgruntled employees of Neverland, with axes to grind. One was sued by Jackson and forced into bankruptcy in the face of a judgment that had exceeded one million dollars; it’s hard to imagine a clearer example of the kind of bias that causes a jury to mistrust testimony.
Meanwhile, this biased testimony was countered by much less biased testimony. Prosecutors had asserted that former child star Macaulay Culkin was once a victim of molestation by Jackson more than a decade ago, when Culkin himself was a frequent visitor to Neverland. But Culkin took the stand and adamantly denied the allegations.
Might Culkin have been biased by his continuing friendship with Jackson? Sure.
Would this bias have caused him to voluntarily perjure himself on the stand – denying an incident that, if it had actually occurred, would have badly scarred him psychologically? That’s doubtful.
Was Jackson’s friend Culkin – with, apparently, no financial dealings with Jackson – much less biased than the witness whom Jackson had forced into bankruptcy? Absolutely!
In another molestation case, prior bad acts evidence might have convinced an uneasy jury to convict. Imagine a case, for instance, in which the accuser was a very young child whose testimony was convincing, but featured some troubling inconsistencies – inconsistencies that might be due to the accuser’s young age, or might be a sign his claims were fabricated. In such a case, hearing strong evidence of prior acts of molestation on the part of the defendant might convince jurors that they would not make a mistake to convict.
The convincing prior bad acts evidence, in other words, could bolster the credibility of the testimony relating to the actual offense. (Indeed, this is exactly why prior bad acts evidence can be deeply unfair: The defendant is on trial for the offense charged, not the prior bad acts. If the jury is, in effect, convicting him of those acts, due process has been subverted: The defendant has a right to know what he is being charged with, and defend against that.)
But here, if anything, the poor quality of the prior bad acts evidence probably cemented jurors in their resolve not to convict.
Prosecutor Sneddon Was Aware of the Evidence’s Poor Quality, Yet Indicted Anyway
Moreover, the parade of witnesses with poor credibility did more than undermine the prosecution’s case. It also sent an ugly, inadvertent message: This prosecutor wanted to get Jackson even if he had to suborn perjury to do so.
Attorneys have an ethical duty not to knowingly put lying witnesses on the stand.
For defense attorneys, this duty can be in tension with the duty of zealous representation: If your client hasn’t confessed, can you be sure he is lying?
But for prosecutors, complying with this duty ought to be easy: If you think your witness is a liar, don’t put him up there on the stand to lie. Yet the prosecutors in the Jackson case put likely liars up there again and again.
Is it conceivable that the prosecution testimony in Jackson was all true? Of course not. Is it conceivable that prosecutors could have been ignorant about the lies that would be told? It seems highly unlikely.
After all, Mesereau’s cross-examination – though admirably skilled, tenacious, and thorough – offered no Perry Mason moments. Santa Barbara’s top dog District Attorney was hardly caught by surprise by what cross-examination brought out. On the contrary, virtually all the ammunition for Mesereau’s cross-examination was known to both sides.
What are we to think of a prosecutor’s office that may well have repeatedly suborned perjury – and was well aware of the risk that it would?
Especially egregious was the prosecution’s decision to include conspiracy charges in the indictment, and to put on testimony to support these charges. The supposed conspiracy was to hold the boy and his family at Neverland against their will. Objective evidence suggested that these charges were ridiculous. The risk of suborning perjury was extremely high. Yet prosecutors went right ahead and tried to prove these charges.
This was not only wrong, but foolish. The conspiracy charges undermined the credibility not only of the witnesses who tried to support them, but of the prosecution that included them in the indictment.
In disproving them, the defense was devastating: It showed that during the weeks the boy and his family were supposedly being held against their will at Neverland, they were taken on all-expense paid shopping sprees and spa treatments courtesy of Michael Jackson. After the sprees and spas, they willfully returned to Neverland – three times or more. If this is imprisonment, many overworked Americans may be moved to cry out, "Imprison me too!"
Prosecutor Sneddon should have known better than to build a case around complaining witnesses who, by all appearances, wouldn’t know the truth if it bit them. Even now, with a resounding ten "not guilty" verdicts ringing in the nation’s ears, he won’t apologize.
He insists he had to take his accuser as he found him. And it’s true: he couldn’t transform the Arvizos into angels. But he didn’t have to believe them. And he didn’t have to believe them when they were at their most incredible – with respect, for instance, to the conspiracy/kidnapping claims.
And he certainly didn’t have to put other witnesses who were equally lacking in credibility on the stand to try to make up for the Arvizos’ weaknesses. Sneddon might have had to take his accusers as he found them (after he decided to prosecute, that is) but he certainly didn’t have to take his other witnesses as he found them! He could have declined to call them to the stand.
So observers shouldn’t buy Sneddon’s bid to evade responsibility. It’s he who approved the indictment and the witness list, and signed off on the "prior bad acts" strategy. This case didn’t come to him full-grown, begging to be made; instead, like Dr. Frankenstein, he created it.
The Defense’s Forte: Careful Preparation
As I noted above, Thomas Mesereau’s genius was not in Perry Mason moments, but simply in consistent excellence – in preparation, and in cross-examination.
As another basis for their not guilty verdicts, jurors cited the time line of the alleged acts of molestation. Mesereau used prosecutor’s own version of the case to demolish them – in a sort of legal Kung Fu move.
Prosecutors said Jackson molested the accuser after the airing of the now infamous documentary by Martin Bashir entitled, "Living with Michael Jackson" – in which Jackson admitted sharing his bed with children.
Mesereau underlined for jurors how illogical this was: According to prosecutors, Jackson chose to strike at precisely the wrong time: while the eyes of the world were upon him.
Prosecutors also tried to convince jurors that, at the same time, despite his worldwide celebrity, and the intensification of interest in him caused by the documentary, Jackson plotted to secretly kidnap the family and perhaps spirit them away to Brazil! (Hot air balloon not included.)
Certainly, the National Enquirer would not have been able to spare a reporter to uncover that turn of events. Plainly, Jackson could have counted on being able to engineer this international crime, yet having no one be the wiser. Brilliant!
The Bottom Line: A Wrongful Prosecution Leads to a Righteous Result
This case never should have been brought in the first place. But it was – and thankfully, this smart, thoughtful jury did the right thing.
They didn’t do it lightly, either; those who disagree with their verdict should consider that – as we now know from their own interviews — they kept deliberating even though after their initial vote, in the minutes kicking off their deliberations, was a unanimous "not guilty."
Many juries would have reported their verdict back to the judge immediately. But these jurors were anxious to make sure they did the right thing. So they continued to mull the evidence for the better part of 30 hours; their further deliberations spanned seven days.
That’s right: These twelve people sat in a courtroom for thirty hours – taking time away from their jobs, families and other commitments, despite their initial unanimity — just to make sure justice was done.
It was: These jurors did not mistake quantity for quality when it came to evidence. Nor did they mistake shaky testimony for credible testimony – as the prosecutor’s office repeatedly did, knowingly or not.
In his closing argument, Mesereau called the family a pack of scam artists trying to pull off the ”the biggest con of their careers.”
I might say the same about the office of the Santa Barbara’s District Attorney.
Jonna M. Spilbor an attorney and legal analyst on "Kendall’s Court", airing Sundays on Fox News Channel’s Weekend Live with Brian Wilson. She is also a frequent guest commentator on Court-TV and other television news networks, where she has covered many of the nation’s high-profile criminal trials. In the courtroom, she has handled hundreds of cases as a criminal defense attorney, and also served in the San Diego City Attorney’s Office, Criminal Division, and the Office of the United States Attorney in the Drug Task Force and Appellate units. In 1998, she earned certification as a Court Appointed Special Advocate with the San Diego Juvenile Court. She is a graduate of Thomas Jefferson School of Law, where she was a member of the Law Review.