Issue 335
May 6, 2005
v Why Zacarias Moussaoui’s guilty plea likely won’t spare his life by Michael C. Dorf
v ‘Courtroom 302’: The Wobbly Wheels of Justice by Ted Conover
v Prosecution Rests in Jackson Case by Sally Connell and Michael Muskal
v No Thriller, Jackson Prosecution Rests by Steve Chawkins and Stuart Pfeifer
v Prosecutor: Shootings defendant knew actions were wrong
v Lacking $2 Bus Fare to Shelter, Homeless Get a Free Ride, to Jail by Sabrina Tavernise
The following article appeared on CNN.com on April 28,
2005:
by Michael C. Dorf
Defendants
facing the possibility of the death penalty frequently plead guilty in exchange
for a promise from the government not to seek execution. The practice is
unsettling, as the threat of death may induce an innocent person to plead
guilty simply to save his skin.
Nonetheless,
in an overburdened criminal justice system, the courts have accepted plea bargains
as a necessary evil, allowing prosecutors to promise leniency -- including the
sparing of a defendant's life -- so that the government may avoid the cost of a
trial and the risk of an acquittal.
So long as
the defendant "knowingly, voluntarily and intelligently" waives his
right to a trial, the courts will accept his guilty plea.
But what are
we to make of the guilty plea of Zacarias Moussaoui? Last week, Moussaoui pleaded guilty to conspiracy in the
September 11, 2001, plot without any promise of leniency in exchange for his
plea.
Although
there will be no trial regarding his guilt, Moussaoui will shortly face a trial
to determine whether he should be sentenced to death or life imprisonment.
Ever since
he angrily dismissed his attorneys in 2002, Moussaoui has been acting as his
own lawyer, only grudgingly accepting some assistance from standby counsel
appointed by Federal District Judge Leonie Brinkema to ensure fair proceedings.
What has
Moussaoui's self-representation been like? In accepting Moussaoui's guilty plea
last week, the judge said he "is extremely intelligent with a better
understanding of our legal system than some of the lawyers who have appeared in
court."
Yet Seymour
Hersh, writing for the New Yorker, seemed to come closer to the mark when he
said about a raft of filings from Moussaoui during the summer of 2003, that
they "contained some glimpses of acute intelligence and awareness, but
more often Moussaoui veered into angry ramblings."
And indeed,
an examination of the tactical considerations that appear to underlie
Moussaoui's decision to plead guilty undermines the conclusion that he did so
intelligently.
Why an
'unagreed' guilty plea can be intelligent
One might be
tempted to treat every decision to plead guilty to a capital offense without a
prosecutorial promise to forego the death penalty as "unintelligent."
But that would be inaccurate. A defendant could rationally decide to plead
guilty under such circumstances.
Some defendants
feel genuine remorse for their conduct and wish to accept responsibility for
it. A defendant who participated in a crime under the influence of others may
not have fully appreciated the gravity of the offense until faced with the
damage. Or, religious scruples, sometimes acquired after the commission of the
offense, may lead a defendant to plead guilty notwithstanding the possibility
of a death sentence.
Moreover,
whether or not a defendant feels genuine remorse, he may wish to seem remorseful
in the hope of appealing to the sentencing jury. For under federal law, the
same jurors that determine the defendant's guilt or innocence decide whether to
impose the death penalty if they find him guilty.
At
sentencing, that jury is guided by the federal death penalty statute, which
sets out a number of mitigating factors that the jury must consider in deciding
whether to impose the death penalty.
Remorse is
not expressly listed among these, but it would certainly count under the catch-all
provision for "other factors ... that mitigate against the imposition of
the death sentence."
In the eyes
of many jurors, a defendant who contests his guilt, by definition, manifests no
remorse: How could he be remorseful about a crime, if he does not even admit
that he committed it? Thus, the defendant who first contests his guilt and then
professes remorse
only after
he has been convicted, will typically find that the jury disbelieves his
expression of regret. "He's just feigning remorse to save his skin,"
the jurors will likely think.
Suppose,
then, that a defendant believes that he is likely to be found guilty anyway,
because the government's case against him is very strong. He may calculate that
his best hope of averting the death penalty is to plead guilty and, in effect,
throw himself on the mercy
of the sentencing jury. Thus, he may rationally plead guilty even without any
prosecutorial promise of leniency.
Why
Moussaoui's plea makes little sense
In short,
there are a number of very good reasons why a defendant might plead guilty to a
capital offense even without a prosecutorial promise of leniency. But none of
them appear to apply to Moussaoui.
Moussaoui is
a fanatically religious man, but it is his very religious feeling that, he
claims, justified his participation in a plot to commit mass murder. Far from
feeling genuine remorse, Moussaoui appears to regret only that he was
apprehended before he
had the
opportunity to complete his mission of destruction.
Moreover, Moussaoui
has quite openly expressed these sentiments. He has amply exhibited his lack of
genuine remorse through his lack of even feigned remorse. So he can hardly be
described as throwing himself upon the court's mercy.
What about
the strength of the case against Moussaoui? Is he merely accepting the
inevitable by pleading guilty?
There is
essentially irrefutable evidence that Moussaoui came to the United States on an
al Qaeda mission to fly an airplane into a building. But there are real doubts
about whether Moussaoui was ever intended to be the 20th hijacker on September
11, 2001, as the prosecution maintained.
Moreover, a
skillful lawyer might have used those doubts to sow doubt on other elements of
the government's case. By pleading guilty, however, Moussaoui effectively
eliminated that possibility.
Moussaoui's
own misguided account of his plea
If Moussaoui
did not plead guilty because of remorse, feigned remorse, or the overwhelming
strength of the case against him, why then did he do it?
The answer
is not entirely clear, but his statements in the plea colloquy -- the oral
exchange between the judge and the defendant meant to ensure the plea is
voluntary and that the defendant indeed committed the offense -- suggest that
Moussaoui thought he had tricked the prosecution.
Moussaoui
acknowledged that he was an al Qaeda operative intent on flying an airplane
into a building, according to his account, the White House. But, he insisted,
his plot was distinct from the September 11th plot. Accordingly, he may think
that the evidence of
the death
and destruction caused by the September 11th hijackings will be excluded from
his penalty trial.
If that is
indeed Moussaoui's thinking, he is very much mistaken. Although the indictment setting forth the
charges to which he pleaded guilty does not specifically state that he was to
be the twentieth hijacker, it clearly alleges that he engaged in the same
pattern of
conduct as the other hijackers and was part of the broad al Qaeda conspiracy to
fly planes into buildings.
As the
indictment charges -- and as Moussaoui admitted by pleading guilty -- that
conspiracy resulted "in the deaths of thousands of persons on September
11, 2001." The fact, if it is a fact, that Moussaoui's role in the
conspiracy would have led to numerous
additional
deaths of different persons on a different date is legally and morally
irrelevant to whether he is guilty of the offense charged.
The
symbolism of Moussaoui's sentencing hearing
If Moussaoui's
logic in pleading guilty is faulty, does that mean that his plea is invalid?
Hardly.
In requiring
that a guilty plea be "intelligent," the law does not demand that it
be wise. After all, most criminals--and especially terrorists like Moussaoui--live
their lives by a logic quite different from that of law-abiding citizens. Thus,
the law's requirement of "knowing, voluntary and intelligent" guilty
pleas should not be taken literally. That language is essentially a formula for
the notion that the defendant understands that by
pleading
guilty, he waives his right to a trial to determine his guilt or innocence.
Likewise,
the public should understand what Moussaoui's guilty plea means. With the 19
September 11th hijackers dead and Osama bin Laden still at large, Moussaoui's
trial was always going to be about issues larger than his role in the 9/11
plot.
Fairly or
not, Moussaoui was to serve as a kind of surrogate for the dead and absent
defendants. Now that the issue of Moussaoui's guilt is off the table, his
sentencing hearing can play the role of stand-in trial for Osama bin Laden,
Mohammed Atta and the other villains now or forever beyond the reach of the
courts. And that is unlikely to result in any mercy being extended to the actual
defendant.
* * * * *
The
following article appeared on nytimes.com on May 1, 2005:
'Courtroom
302': The Wobbly Wheels of Justice
By Ted
Conover
In Chicago's
Cook County Criminal Courthouse, ''the biggest and busiest felony courthouse in
the nation,'' 17-year-old Leslie McGee sits before Judge Daniel Locallo, on
trial for a murder she confessed to committing at 16. The victim, a cabdriver,
asked for sex as payment for a ride and grabbed her breast, McGee says; she
shot him, and soon after attracted the attention of the police as she
threatened to kill herself. McGee's defense
lawyer
argues that what she did in the cab is understandable given that she suffered
from post-traumatic stress disorder: a year earlier, she'd been abducted at gunpoint
and kept for several days until she escaped and the police found her ''running
naked from her captors.'' On the evening of the third day of the trial, Leslie
McGee, being tried as an adult, is
convicted of first-degree murder.
What didn't
the jury know about this case (which the prosecutor, outside the courtroom,
called a ''weird little murder'')? All kinds of things, some of them shockingly
relevant. For one, McGee and the married cabdriver had probably been having an
affair for several months. According to one confession she gave the police, she
killed him because he'd been beating her; according to a second, because she'd
seen him with another girl. She
had fired
the gun after saying, ''God bless you,'' and kissing him on the cheek. In jail,
McGee had been given a diagnosis of bipolar disorder. She was the second of her
father's children to have killed someone as a teenager. (''When she was 6, her
17-year-old half brother plunged a butcher knife into the face of his mother's
boyfriend during a fight.'')
No matter
the outcome of the trial, she thinks she needs to be locked up for a few years,
''somewhere I can close myself off from the world, clear my mind of all the
negatives.'' At the defense table, she dresses like a schoolgirl, with pigtails
and Winnie-the-Pooh on her blouse. But tattooed on one calf, under a pulled-up
crew sock and invisible to the jury, is an image about as far from the Hundred
Acre Wood as you can get: a picture of
a hand
grasping a penis.
Steve
Bogira, for years a reporter for The Chicago Reader, burrows into the machine
that processes thousands of citizens a year, most of them poor,
African-American and involved with drugs. His intuition was that the goings-on
in the old limestone courthouse on 26th Street, however banal-seeming, might
hide sprawling human dramas. And by focusing on something small -- the cases
coming before one judge, in a single courtroom -- he gets a handle on something
large and hard to make sense of: the American way of criminal justice.
Bogira
gained admittance to Courtroom 302 with the permission of Judge Locallo, a
Chicago native and policeman's son. Locallo gave Bogira access to his chambers,
his staff and, more than once, his own home. The prosecutors and public
defenders assigned to the courtroom also opened up, allowing him to see police
reports and other documents. These reports were crucial because, as Bogira
notes, ''the heart of criminal court
proceedings is not the judge . . . but the defendant, who is the reason
for the whole exercise.'' Incidents he learned of in the courtroom gallery (the
shooting of a burglar by a homeowner, a stabbing in a prison barber shop) were
merely the starting point for Bogira. He found and interviewed defendants'
parents (often absent from the trial) and grandparents, talked to jurors,
psychiatrists and probation officers and, by following up with convicted
defendants in jail and prison, even collected a confession of perjury, as well
as at least one admission of guilt from a defendant who had claimed he was
innocent at trial.
In this
search for context, Bogira read seminal articles in legal journals. For the
McGee case, he can offer a synopsis of the history of juvenile justice in the
United States. Other cases open the door to informed asides on issues like the
value of expert witnesses, jury
selection
and race, prosecution of the mentally ill and mentally retarded, and false
guilty pleas (''at 26th Street, pleading guilty doesn't mean you are'').
''Courtroom
302'' also shines in its intimate portrait of a judge and his work. Daniel
Locallo seems in many ways a judge's judge -- he receives positive ratings from
six bar groups and is, from all evidence, honest and hard-working, candid and
open. Yet the portrait is sometimes unflattering. We learn how, as a young
prosecutor, Locallo uncritically pressed a raft of trumped-up charges against a
black teenager accused of a rape-murder, possibly giving inappropriate coaching
to a child witness. We watch his impartiality compromised by friendships and
realpolitik, and we hear him refuse to repudiate his mobster uncle for the same
crimes he convicts strangers of every day. (''Maybe it's because I loved my
uncle Vic, but I never looked down on him because of what he was involved in.
You do what you have to do sometimes.'')
In the
book's most extended and suspenseful subplot, Locallo presides over the cases
of three white teenagers accused of savagely beating two black kids who
wandered into their neighborhood. This being Chicago, the probation deals
offered two of them provoke the Rev. Jesse Jackson and other activists, while
the eight-year sentence given the leader sparks a campaign by his family and
organized labor to unseat Locallo (Illinois judges face re-election every six
years). Locallo keeps his seat, but when he tells Bogira that his only regret
''is that I didn't give the sonovabitch 10,'' we see even a good judge can
nurture a grudge.
Most of
Locallo's proceedings, however, are not so exciting. Readers whose acquaintance
with criminal justice comes mainly through high school civics may be perplexed
to learn that one important measure of performance is the number of ''dispos''
-- that is, dispositions, or plea bargains -- a judge can achieve. Trial by
one's peers seems almost quaint today, so strong are the incentives for a
defendant to choose something less demanding on the system than a jury trial.
More than four of every five cases in the courthouse are ''dispo'd,'' Bogira
reports. He compares the negotiations to car sales: the maximum sentence is the
sticker price, the plea offer the wholesale.
Of course,
it is drug cases that have overwhelmed the docket. Bogira follows the
continuing story of one genial middle-aged drug defendant, Larry Bates, through
three probations, repeat arrests, drug treatments and his son's high school
graduation before a prison term from Locallo. ''The concept of studying an
offender and devising a rehabilitation plan isn't frowned upon so much as not
looked upon at all,'' Bogira writes. ''The proper sentence is whatever both
sides can agree on to belch out one defendant and make space for the next.''
A picture
emerges of a system so cynical and overburdened it fails to elicit, or even
seek out, the reasons behind crimes. (Leslie McGee's public defender, informed
by Bogira of her client's unusual desire to be incarcerated, responds, ''What
do I look like, a social worker?'') The idea that the courts might attempt to
facilitate reconciliation between
aggrieved parties, called in progressive circles ''restorative
justice,'' is never entertained. One of the most memorable scenes of this
excellent book takes place in the gallery of Courtroom 302 on the day a
murderer is sentenced. The murderer is a gang member; his victim, a college
student. Both are African-American. The murderer never testifies and no
explanation for the crime emerges, even after the conviction. The murderer's
mother, trying to control two small children (one of them his), sees the
victim's mother and her family enter:
''After
they've settled into a bench across the aisle, Karen Harris takes a deep
breath, pushes herself to her feet and steps hesitantly over to the aisle. She
catches Diane Smith's attention, then quickly averts her eyes.
'' 'I'm
sorry about what my son did to your son,' Harris says softly.
''Smith
tilts her head subtly in Harris's direction, nods and says, 'Thank you.' ''
Sometimes,
when the system fails to provide resolution, people find it for themselves.
* * * * *
The
following article appeared on latimes.com on May 4, 2005:
Prosecution
Rests in Jackson Case
By Sally
Connell and Michael Muskal
SANTA MARIA,
Calif. — Almost 10 weeks after the prosecution said it would show that Michael
Jackson sexually preyed on a young boy, it presented its last witness today and
rested.
Defense
attorney Robert Sanger then served the judge and Dist. Atty. Thomas Sneddon
with a motion asking for a judgment of acquittal on the grounds that the
prosecution case was too weak to continue.
Superior
Court Judge Rodney S. Melville is expected to rule on the motion Thursday
morning. Such motions are routine and usually rejected. Melville also agreed to
later consider whether some documents can be introduced as evidence.
After using
his cross-examinations to chip away at every inconsistency, lead defense
attorney Thomas A. Mesereau Jr. now gets his chance to portray Jackson as the
victim of a greedy family who trapped the innocent pop star in a web of lies
and financial exploitation.
Mesereau is
expected to call a string of the pop star's employees and a cast of celebrities
to testify that no inappropriate conduct ever took place.
The defense
attorney is also expected to continue sounding the notes he has already sung:
The accuser's family is a collection of con artists with a history of lawsuits,
scams and lies. Other witnesses will be portrayed as opportunists selling their
tales to the sensation-seeking media or hoping for a financial windfall from
civil suits filed against a vulnerable Jackson.
The big
decision for the defense is whether to allow Jackson to testify. Mesereau
indicated in his opening statement that jurors would hear denials from the
singer's lips, but putting Jackson on the stand would also place him in the
potentially dangerous position of having to answer prosecution questions.
The
prosecution's presentation suffered from some witnesses falling short, the
occasional bizarre detour and sometimes confusing testimony. After showing
initial interest, jurors appeared numb after days that were devoured by the
display of pornography seized at Jackson's ranch.
But for more
than two months, the jury of eight women and four men sat for six hours a day,
listened to 85 witnesses and viewed a multimedia parade of exhibits, slides,
video and voice recordings. With no lunch hour, there were just three 15-minute
respites from the unrelenting heat of the trial that one defense lawyer called
"the trial of the century du jour."
Jackson, 46,
is charged with molesting a 13-year-old boy in early 2003 at Neverland in the
Santa Ynez Valley and conspiring with aides to control the accuser and his
family. The singer is also charged with giving alcohol to a minor to aid in the
commission of a felony — wine and vodka used to seduce the boy who was in
remission from cancer at the time.
Jackson
faces more than 20 years in prison if convicted of all charges.
The core of
the prosecution's molestation case depends on the testimony of the accuser,
while his mother is the heart of the conspiracy charges. Two other women whose
sons received millions of dollars from Jackson to settle civil charges of
molestation in the 1990s gave important supporting testimony.
The
prosecution contends that Jackson's woes began in early February 2003, with the
broadcast of a British documentary, "Living With Michael Jackson," by
Martin Bashir. The correspondent was the lead-off witness and the 90-minute
program was played in court.
In that
video, jurors got their first glimpse of the 13-year-old accuser, who rested
his head on Jackson's shoulder while holding hands. "He's really a child
at heart," the boy said of the singer.
Bashir later
asked Jackson about the propriety of sleeping with young boys, even if it was
for something innocent like sharing cookies and milk — and not sex.
"It's
very right," Jackson told Bashir. "It's very loving. That's what the
world needs now."
The
documentary set off tremors through the Jackson camp, said a publicist who was
involved in damage control. On a scale of one to 10, the damage was probably a
25, consultant Ann Gabriel Kite testified.
Jackson has
been the target of gossip about child molestation for years and had been
investigated by authorities in the early 1990s, though no criminal charges were
filed. Advisors feared that Jackson's comments on the video would reignite
those rumors and official inquiries, further eroding his popularity and hurting
the financially pressed star.
Among the
strategies to minimize the fallout was a news conference that was never held,
and a rebuttal video, featuring the accuser and his family, whose names were
used in court, but whose identity was generally protected by the media. The
rebuttal video was played four times to the jury.
In his
testimony, the accuser, now 15, described his early years growing up in a
cramped East Los Angeles apartment, often beaten by his biological father. When
he was 10 he was diagnosed with what doctors said was terminal cancer. To fight
the cancer, doctors eventually took out the boy's spleen, kidney and a 16-pound
abdominal tumor.
"I
heard the doctor tell my parents to prepare for my funeral," the boy
testified. "He said if the cancer didn't kill me, the chemotherapy
would."
The boy
attended a special camp for underprivileged children that was sponsored by The Laugh
Factory, a Hollywood comedy club. Through the entertainment world connections
the family made, the boy eventually met an expanding number of comedians,
including club owner Jamie Masada, George Lopez, Louise Palanker, Chris Tucker
and Fritz Coleman, a performer and Los Angeles weatherman. Some of the stars
helped the boy by raising money; others gave presents of toys and even a car.
The defense
alleged that the mother was stalking through the entertainment world, seeking
money to support her spending. But the comedians who testified painted a
positive picture of the woman while frequently criticizing the biological
father. In her testimony, the mother denied that she was venal and blamed the
father for any questions in how the money was handled.
The boy
wanted to meet Jackson and by 2000 the pop star became aware of the boy's
condition. As he has done for many sick children, Jackson telephoned while the
boy was recuperating in his hospital bed. The calls led to an invitation and a
limousine to bring the boy and his family to Neverland in August 2000. After
numerous overnight visits, the boy said that the pop star almost completely
stopped calling until September 2002, when the children went back to Jackson's
ranch to be interviewed by Bashir.
Days after
the British broadcast on Feb. 3, 2003, the family was whisked off to Florida on
a private jet supplied by Tucker for a news conference that never took place,
the accuser's sister testified.
It was on
that trip that the sister, now 18, said she saw Jackson and her brother drink
from a soda can, allegedly laced with alcohol. Flight attendants testified that
they often put alcohol in soda cans for Jackson, but said they never saw the
singer share with children.
The sister
was followed on the stand by the accuser's younger brother, the only eyewitness
to testify that he saw Jackson molest his brother. Now a high school freshman,
the brother, who was 12 at the time, said he twice saw Jackson masturbate while
fondling the accuser, who was asleep or unconscious.
In addition
to the two alleged masturbation incidents, the brother described life with
Jackson. The singer and the boys would get drunk on wine, which Jackson called
"Jesus juice." Jackson and the boys would make obscene crank
telephone calls, troll the Internet for erotic websites and examine the
collection of pornographic magazines. Jackson simulated sex with a mannequin,
the boys said.
Jackson has
lived a lifestyle modeled on Peter Pan, even calling his home
Neverland, a
special place where children were invited to run wild and sample
such
delights as Disney-sized rides, electronic games and amusements that would
be the envy
of any suburban mall. Former maid Kiki Fournier compared Neverland
to
Pinocchio's Pleasure Island, a free-fire zone for boys.
One maid
testified to being bitten twice by Bubbles, Jackson's former pet chimpanzee.
Another maid described cleaning monkey excrement off the walls, which seemed to
be where it ended up "when they got mad."
During the
trial, a parade of sheriff's deputies described the mundane details of the
November 2003 search of Neverland and in the process opened up Jackson's
once-private sanctuary to public view. Jackson had a two-story bedroom suite
with a re-creation of Leonardo da Vinci's "The Last Supper," with the
star's face in the place of honor. The painting hung over the extra-large bed
whose cover sparkled. There were life-sized dolls and "Star Wars"
figures and electronic media equipment.
After the
accuser's siblings testified, he took the stand. The prosecution has made much
of the physical similarity between the current accuser and most of the other
children whom the prosecution says were molested by Jackson. All are handsome,
olive-skinned and with dark hair.
Shooting the
rebuttal video began Feb. 19 and lasted into the wee hours of the next day.
When it was done, the prosecution charged, the boy was taken back to Neverland
for a night of partying. Early the morning of the 21st, they went to Jackson's
bedroom. There, the boy testified, he turned down Jackson's offer to teach him
how to masturbate.
"He
told me that if men didn't masturbate, they can get to a point where they might
rape a girl or might become unstable," the boy testified. Jackson
"said if I didn't know how to do it, he would do it for me," the boy
continued.
"I said
I didn't really want to," the boy said, but they eventually got into bed.
"I was
under the covers and he put his hand in my pants and he was masturbating
me," the boy testified.
Asked if
Jackson was also masturbating, the boy replied that he couldn't see, but,
"I could feel him moving.
"I felt
embarrassed about it and he said it was normal."
The boy
described the second time when Jackson said he wanted to touch him: "The
same thing happened again. He said he wanted to teach me. He started doing it
again and then he kind of grabbed my hand like he wanted me to do it to
him," the boy testified. "I pulled it away."
The boy
never told anyone of the alleged molestations until months later, a point that
the defense repeated many times. The charge of molestation didn't come until
the family had contacted a lawyer who was involved in one of the previous
settlements, a point Mesereau used to support his claim that the family was
only out for a fat payment.
"I
don't think he is deserving of the respect I was giving him as the coolest guy
in the he world," the boy said of the pop star he once idolized.
Judge
Melville issued rulings on dozens of motions, including rejecting at least four
defense attempts at a mistrial, but none was more important than his decision
to allow the prosecution to present material relating to past allegations that
Jackson sexually abused young boys. Experts argue that child molesters often
exhibit a pattern of bad acts, so under a 1995 California law, such material
can be admitted even if no criminal charges were filed.
Defense
attorneys and civil libertarians have condemned the law, which has been upheld
by the California courts, because it allows the jury to hear evidence that may
not be directly related to the charges that a defendant faces.
Even though
Melville rejected some of the prosecution's requests, he did allow seven adults
to testify about what they saw Jackson do to five boys. Three of the boys,
including actor Macaulay Culkin, have publicly denied that they were molested
by Jackson. They are expected to be among the first defense witnesses.
The other
boys received multimillion-dollar settlements, though the jury has not been
told the amounts. One, now a 24-year-old active in area churches, told of how
he was molested three times as a child. Twice, the man testified, Jackson gave
him $100 bills and told him not to tell anyone.
His mother,
a former maid at Neverland, confirmed seeing the bills. She also testified that
she saw men's and boy's underwear outside a shower used by two figures she
believed to be the pop star and a young boy who was not her son.
The woman,
who worked for Jackson for about five years beginning around 1986, also described
occasions involving two other young boys she thought slept in Jackson's bed
when they visited Neverland. One boy even had his own, child-sized suitcase she
would fill with laundered clothes that he had strewn across Jackson's floor.
The second boy
who received a settlement, reportedly of about $20 million, never took the
stand, though his relationship was described by a variety of witnesses,
including a former security guard who testified that he saw Jackson perform
oral sex on the boy. The boy's mother, who said she has been estranged from her
son for 11 years, also testified.
She
described Jackson's lavish spending on the boy and how she allowed her son to
sleep in the same bed with Jackson on trips around the world and at least 30
times at her Santa Monica home. Jackson would visit at night to be with the boy
and leave during the day.
"Do you
regret every doing that?" Sneddon asked.
"Very
much so," the mother answered.
The day
after the woman gave in to Jackson's pleas to sleep with her son, the pop star
gave her a gold Cartier bracelet, she testified.
The material
of past accusations was a coup for the prosecution, whose case was far from
ideal. At least three witnesses, including the accuser's mother, invoked their
5th Amendment right not to incriminate themselves.
Four other
prosecution witnesses, including a former longtime employee of Jackson, didn't
give the kind of damning testimony for which the prosecution hoped. That raised
questions about whether the prosecution was ill prepared or why the witness, a
former confidante who had been with Jackson since the singer was a Motown
recording artist, changed his mind.
Perhaps the
most dramatic switch was Debbie Rowe, Jackson's ex-wife and mother of two of
his children. Rowe, who is often described as Jackson's biggest fan, was called
as a prosecution witness to support the testimony of the mother of the accuser.
In a sharp reversal, she denied that she had been rehearsed or scripted in an
interview that praised Jackson.
Rowe, who
said she hadn't seen her children in 2˝ years and is fighting Jackson for
visitation rights, praised the singer and portrayed him as a victim of close
aides whom she described as "opportunistic vultures." That echoed a
defense strategy of fighting the conspiracy charge by separating Jackson from
his aides.
There was
also a dispute over how the accuser's fingerprints got on a different page of
the same pornographic magazine as Jackson's prints. The defense maintained that
the adult materials had either been handled by the boy during the grand jury
proceeding, or when the boy and his brother broke into a suitcase of erotic
magazines on their own. The prosecution rejected both contentions.
Throughout,
the defense team scored many points in the cross-examinations, probing each
inconsistency in trying to undermine the witnesses' credibility. The defense
got the sister of the accuser to admit she had lied on some of the minor
points, including where Jackson drank alcohol with the children.
The most
protracted cross-examination was of the accuser's mother, the center of the
conspiracy charge. She testified about the 28 overt acts that the prosecution
contends showed that Jackson conspired with his aides, many of whom are
unindicted co-conspirators, to kidnap, extort and falsely imprison his
accuser's family.
The mother's
testimony and cross-examination stretched over more than 20 hours. During her
rambling accounts, she cajoled and gestured in the most dramatic confrontation
during the prosecution's case.
At one
point, the mother testified that she didn't do anything when she saw Jackson
lick her son's head. Then she turned to the jury and pleaded, "Don't judge
me!"
The woman
testified that she participated in the rebuttal video because she was told by
Jackson aides that unnamed killers would visit her family. She insisted she had
been reciting from a script when she appeared on the rebuttal video and
compared Jackson's goodness to God's. "God elected to work through
Michael," she said on the video. "We may be broken, but Michael fixed
us."
She also
testified that she learned that she and her relatives were under surveillance
by investigators working with Jackson's former lawyer. She said Jackson aides
had shuttered her apartment without her permission and had tried to spirit the
family off to Brazil to get them out of the way. A travel agent later testified
that a Jackson aide asked her to get four, one-way tickets to Sao Paulo.
Though her
testimony sounded outlandish at times, the prosecution also introduced physical
evidence, including surveillance tapes, passport applications, the Brazilian
itinerary and a video of her apartment being shuttered.
When
Mesereau asked the mother about alcohol use at Jackson's home, she used the
question to
opine: "Now I know Neverland was all about booze, pornography and sex with
boys."
The answer,
like other parts of her testimony, was stricken from the record, meaning the
jury should disregard it. But that might be difficult. Melville asked the jury
"to unring a bell you've already heard ring."
Mesereau did
get the woman to admit that she had lied twice in previous depositions
connected to a civil suit stemming from an altercation in the parking lot of a
shopping center near her home in El Monte in 1998. The jury also never heard
the details of what the defense maintains was the woman's welfare fraud.
Both issues
are expected to return during the defense case.
The
narrative of events was often graphic and the descriptions sexually explicit.
Several times tensions exploded, prompting the judge to warn lawyers about
professional standards and to caution witnesses to stay on point. In addition
to warning at one point that he would shut down the trial for a day, Melville
threatened to have Jackson jailed if he didn't end one of his two unauthorized
hospital trips and return to the courtroom.
Jackson
complied, showing up in pajama bottoms instead of his usual natty attire of
jacket, multihued vest and fashion-coordinated armband. The rumpled singer
listened to his accuser describe how he was molested that day.
The
recording artist, who has sold hundreds of millions of albums in a four-decade
career that went from the child voice fronting the Jackson 5 to the high energy
performer who called himself the King of Pop, sat stonily throughout the
testimony.
* * * * *
The
following article appeared on latimes.com on May 5, 2005:
No
Thriller, Jackson Prosecution Rests
Molestation
case against the pop star took some unexpected hits. The defense is
to begin
today.
By Steve
Chawkins and Stuart Pfeifer
Times Staff
Writers
SANTA MARIA,
Calif. — When pop star Michael Jackson was charged with child
molestation
in 2003, prosecutors said his trial would finally topple a world-class
entertainer who had used his fame and money to elude similar allegations in the
past.
But when
Santa Barbara County Dist. Atty. Tom Sneddon rested his case Wednesday,
its effect
was muted by a string of dubious witnesses caught in inconsistencies and lies.
The key
witness, the 15-year-old accuser, struggled through tough cross-examination,
contradicting himself and admitting to lies — common enough among molestation
victims, according to child-abuse experts, but lies nonetheless.
"I
don't think the prosecution made its case," said Los Angeles criminal
defense attorney Trent Copeland, noting that the accuser was uncertain about
such fundamental details as how many times he was molested.
"If you
can't believe how it happened, when it happened, how many times it happened,
you begin to wonder whether it happened," Copeland said.
The
molestation testimony, which took only hours, was eclipsed by evidence about
Jackson's alleged conspiracy to hold the boy and his family captive at the
Neverland ranch. That testimony dragged on for weeks — and, in the end, still
was murky.
The central
witness to the alleged conspiracy was the accuser's mother, whose testimony
raised more questions than it answered. Admitting to lies in a lawsuit against
J.C. Penney Co., she opened the door to defense arguments that she was an
opportunist out for a chunk of Jackson's fortune.
For their
part, prosecutors scored points by showing surveillance videos indicating that
the mother and her three children really were being followed by Jackson
associates, as she had alleged.
Even more
significant, they were allowed by Santa Barbara County Superior Court
Judge Rodney
S. Melville to introduce testimony on past allegations of molestation against
Jackson.
Under a
10-year-old California law, the eight women and four men on the jury may
conclude
from those accounts that the entertainer is a pedophile, and therefore likely
to have molested the teen in the current case.
But most of
those decade-old accusations came from ex-employees who had peddled their
stories to the tabloids, had been involved in a lawsuit against Jackson or
generally were made to seem by the defense as if they had an ax to grind.
"The
jury can see what they want to see," said former federal prosecutor Laurie
Levenson, who now teaches at Loyola Law School in Los Angeles "If they
want to see Michael Jackson as a serial child molester, they've got the
evidence. If they want to see him as hounded by ex-employees, bizarre mothers
and people with dollar signs in their eyes, they'll see that."
Jackson, 46,
is charged with four counts of child molestation as well as one count of
conspiring to hold the then-13-year-old boy and his family captive at his
opulent Neverland ranch in the Santa Ynez Valley. He also faces four felony
charges of giving the boy wine in order to seduce him and one count of
attempted molestation. If convicted of all 10 counts, the singer could face
more than 20 years in prison.
The
prosecution's scenario was at once fascinating and repellent, a story about one
of the most successful celebrities in the world allegedly preying on a
star-struck young cancer survivor from a broken home.
According to
prosecutors, the molestation began after Jackson and his aides conspired to get
his accuser's family to appear in a gushing video to rebut a damaging British
TV documentary.
In the 2003
documentary, Jackson set off a global uproar by admitting that he enjoyed
nonsexual sleepovers with young boys. His accuser appeared in the documentary,
holding hands with the singer and resting his head on his shoulder.
The defense
contends that Jackson was actually the person victimized. According to his
attorneys, the singer was generous to a fault, unwittingly offering help to a
con artist who had her young son accuse him of molestation so she could cash in
on an eventual lawsuit. The Times is withholding the mother's name, along with
the names of other relatives who testified, to protect the identities of the
alleged molestation victims.
Jackson
attorney Thomas A. Mesereau Jr. has ridiculed the prosecution's timeline, in
particular the allegation that the molestation began after the TV documentary
prompted Santa Barbara County prosecutors and Los Angeles social workers to
investigate whether abuse had already occurred.
Jurors will
probably hear the defense case starting today. Jackson's lawyers filed a motion
late Wednesday asking that all charges be thrown out for lack of evidence.
Many legal
analysts said they would not be surprised if Melville threw out the conspiracy
charge, contending there was little evidence linking Jackson to the alleged
plot.
Prosecutors
have suffered several self-inflicted wounds, analysts said. Several of their 85
witnesses backfired.
Jackson's
ex-wife, Deborah Rowe, was to testify that Jackson aides carefully rehearsed
her appearance on the rebuttal video that praised her ex-husband. This would
have echoed the mother of Jackson's accuser, who said she was coached for a
similar appearance while being held at Neverland.
Instead,
Rowe told the jury that her affectionate statements on the video were
spontaneous and unrehearsed. Further, she said Jackson's associates often acted
without his knowledge and against his best interests — a potentially damaging
blow to the conspiracy charge.
The
accuser's mother was at times weepy, at times combative during her five days on
the stand.
She told of
Jackson's aides coercing her into staying at Neverland by saying killers had
targeted her and her children. She spoke of Jackson's plan to have the family
vanish in Brazil, and her efforts to leave clues for anyone who might try to
find them.
That she
"escaped" from Neverland the first of three times in a Rolls-Royce
driven by a Jackson employee was one of many apparent inconsistencies that
defense attorneys pounced on. During one of the "escapes," she
conceded, she took a chauffeur-driven trip at Jackson's expense to get a
leg-waxing.
By the end
of her testimony, prosecutors did manage to show that Jackson aides took some
extraordinary measures to control the woman. At times they followed her,
recorded some of her calls and even tried to sit in when Los Angeles social
workers interviewed the family.
Still, her
demeanor may have raised serious doubts for jurors.
"There's
no question that she came off as paranoid and possibly even delusional,"
said Jim Hammer, a former San Francisco prosecutor who is following the trial
as a TV analyst.
Even so, the
prosecution scored some significant points. Jurors saw the 2003 British TV
documentary and Jackson's admission about the sleepovers.
And they
learned that Jackson paid settlements to two boys who had accused him of
molestation in the 1990s, although the amounts of the settlements (one was for
more than $20 million, the other for more than $2 million) were not disclosed.
When the
current accuser testified, jurors saw a teenager so at ease with prosecutors
that he addressed Sneddon by his first name. But under grilling by Mesereau, he
lapsed into a mumbling monotone, especially when asked about inconsistencies in
his various accounts of the alleged molestations.
The teen
acknowledged some confusion about when the alleged incidents occurred. He also
admitted he told a school administrator that Jackson did not molest him,
explaining that schoolmates would have taunted him if word got out.
The only
witness to any alleged molestations was the accuser's younger brother, a high
school freshman who spoke haltingly and was uncomfortable on the stand.
The boy
described twice seeing Jackson masturbating in bed while fondling his brother,
who he said appeared to be asleep. Under cross-examination, he denied giving
different details to a psychologist, who told a grand jury that the boy said he
saw Jackson rubbing up against his brother's buttocks.
"I
never said that," he insisted in court. "I know what I said."
Credibility
also was an issue for many of the witnesses who testified about alleged
molestations in Jackson's past.
They
described watching the singer showering with young boys and sleeping with them
in his Neverland bedroom. They said they saw him kissing and groping children,
including actor Macaulay Culkin.
The most
graphic testimony came from former Jackson security guard Ralph Chacon, who
said he saw the pop star perform oral sex on a teenage boy outside a shower at
Neverland in 1993. But on cross-examination, Chacon acknowledged suing Jackson
for wrongful termination and, in a countersuit from the star, being slapped
with a $1.4-million legal judgment that forced him into bankruptcy.
Perhaps most
damaging to Jackson was the testimony from the 24-year-old son of a former
Jackson maid. The young man, a former youth pastor, stifled tears and asked for
a court recess while explaining to the jury that Jackson fondled him three
times when he was between 7 and 10 years old.
After each
incident, the young man testified, Jackson gave him a $100 bill.
"It was
kind of a 'Don't-tell-your-mom about the money,' " he said.
Mesereau, so
successful at scoring points in cross-examining other witnesses, had little to
say to the maid's son, the only alleged victim to testify directly about past
abuse.
There were
other powerful moments for the prosecution.
The mother
of a 13-year-old boy who sued Jackson for alleged molestation in 1993 admitted
that she turned a blind eye toward the relationship between the superstar and
her son.
Even when
Jackson spent 30 consecutive nights in the boy's bedroom, she said, she failed
to act.
Instead, she
said, she accepted gifts of expensive jewelry and lavish trips.
Asked when
she last saw her son, she choked up, barely able to answer.
It's been 11
years, she said.
Now 25, her
son did not testify.
Dashed
expectations
A number of
prosecution witnesses in the Michael Jackson child-molestation trial
did not
testify as prosecutors had predicted. Among them: