Calling all victims: Prior acts crucial to case against Jackson
By Matt Bean
Court TV
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Michael Jackson
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(Court TV) -- New leads that turned up in the wake of Michael Jackson's high-profile arrest on child molestation charges last week could yield crucial evidence corroborating the current charges against the superstar.
The Santa Barbara District Attorney's office is now following up more than 100 new angles, according to published reports. If any of those leads uncover additional victims, prosecutors can enter evidence of that alleged prior child sexual abuse into Jackson's trial, whether or not they choose to pursue additional charges.
The evidence is admissible thanks to a controversial shift in California's evidence law in 1996 that changed the way so-called "propensity" evidence is handled in the courts. It could also be crucial to the state's case because Jackson's defense is expected to attack the credibilty of the 12-year-old boy's family.
"Prior victims could be devastating to Michael Jackson. He can call the first victim's credibility into question, but once you put three or four cases next to it that look pretty much the same, that turns the case," said Paul Pfingst, former San Diego District Attorney now in private practice. "It would be catastrophic for Jackson. Then what could he do? Argue an epidemic of incredibility? Group hysteria fed by newspaper accounts and suggestive interview techniques?"
Jackson, 45, turned himself in to police last week after Santa Barbara District Attorney Thomas Sneddon and Sheriff Joe Anderson called for him to surrender in connection with the abuse charges. Sneddon said in a press release that he planned to file charges against Jackson the week of Dec. 15, and an arraignment date is scheduled for Jan. 9.
During their press conference last Wednesday, Sneddon and Anderson made a public appeal for other victims to come forward. It appeared to pay off: On Tuesday, published reports said Sneddon's office had whittled thousands of responses into a pool of 100 leads, although the office would not comment on the continuing investigation.
Officials are now charged with the task of vetting the claims of those who have come forward. The follow-up work would allow prosecutors to reduce their reliance on the one current accuser, whose family has been closely scrutinized already in the press.
Documents from a nasty 2001 divorce included allegations that the father threatened to kill the boy, his mother and his two siblings. The same man was arrested on child abuse charges in 2002. And published reports have suggested Jackson's defense could try to impeach the child's parents with videotaped statements in which they called Jackson a father figure to the child.
Even if the boy's story turns out to be less than airtight, his claims might not be the only ones a jury hears.
Out of the woodwork
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District Attorney Thomas Sneddon
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To start, California evidence codes allow prosecutors to call other potential victims to show that Jackson, as an alleged child molester, was a creature of habit.
"They would try to show that he had a common way of doing this, that it was part of a common pattern of behavior," said Pfingst, who has both defended and prosecuted child sexual assault cases. "The closer you get to the crimes looking like each other -- he brings them to the same place, says the same words, performs the same type of sexual acts -- the more of those there are, the more likely prior acts will come in."
Furthermore, a 1996 law change allows prosecutors to introduce evidence of prior sexual assaults, provided a judge decides the evidence is reliable and would not unduly taint the jury.
"Evidence that a particular defendant has such a propensity is especially probative and should be considered by the trier of fact when determining the credibility of a victim's testimony," argued the bill's author, former prosecutor and assemblyman James Rogan.
Rogan said he drafted the legislation because attorneys were all too often entering evidence of prior acts in abuse cases through the "motive, intent or opportunity" exception. The problem: jurors were faced with confusing instructions on how to interpret that evidence.
"It was important to continue to allow the judge to make the ultimate decision [on whether to admit the evidence], but I wanted to remove the confusion and let prosecutors tell it to jurors straight," said Rogan, who is now under secretary of commerce for intellectual property at the U.S. Patent and Trademark Office.
Together, the two prongs of the prosecutor-friendly evidence code give the state a decided advantage, should additional accusers turn up. But the passage of AB 882, the bill that changed the codes in 1996, and created evidence code 1108, was not without controversy.
At its center, the debate was, and still is, about more than simple recidivism. The dispute speaks directly to one of the central issues facing the American court system: Just because someone committed a crime once, does that mean they're likely to do it again?
More likely to reoffend?
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Jackson's Neverland Ranch outside of Santa Barbara, California.
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Advocates say that sex crime offenders are, in fact, more likely to recommit the same crime. And evidence of past sexual acts -- even if no conviction was obtained and the accusations are many years old -- can provide insight into the methods, means and motives behind a more recent sexual assault.
"Ordinarily we do not allow propensity evidence," said Laurie Levinson, a professor of law at Loyola University in Los Angeles. "But this is one area where for so many reasons they've said, 'Well, we do think that if someone commits this crime they are more likely to do this again. It coincides with notions that child molesters just can't help themselves, that this is a very difficult crime to prove and therefore jurors should be aware of prior acts."
But groups like the American Civil Liberties Union are concerned that such evidence would "encourage the jury to convict a defendant simply because they conclude s/he is the 'sort of person' who is predisposed to commit the current crime," as the ACLU stated in a brief opposing the 1996 law change.
Paul Gerowitz, executive director of another dissenting group, the California Attorneys for Criminal Justice, said the lack of an expiration date on the accusations is another troubling area.
"Somebody may have been accused of doing something years ago when they were young and irresponsible -- as our new governor was -- but even though that was only an accusation, it could still be used against you," said Gerowitz. "That takes an otherwise weak case, and turns it into a strong case without them ever having to get a conviction."
The larger philosophical issue, according to Gerowitz: "Do you really want to send someone to prison because they seem like someone who might have done it?"
Will the alleged 1993 victim testify?
Among all of the potential prior victims, one in particular stands out: The now-20-something man that accused Jackson in 1993 of similar sexual assault allegations. Jackson settled that case -- for as much as $20 million, according to some reports -- and the alleged victim withdrew his cooperation from police. But he could still be asked to testify against Jackson.
Whether prosecutors would call him is another question.
Mark Kelegian, a Los Angeles-based attorney specializing in personal injury and sexual assault cases, thinks Sneddon and his team won't want to sully their case with an accuser who changed his tune.
"Here you've got a defendant who already admits to sleeping with other boys," said Kelegian. "My guess would be they're going to make it a very clean case and just avoid all that stuff."
The 1993 accuser is also tainted by having accepting a civil payout, said Gigi Gordon, a Los Angeles-based attorney.
"If people are involved in a civil negotiation, it's just like witnesses that have been paid by the tabloids," said Gordon. "They're useless once they get on the witness stand."
Larry Feldman, the attorney who represented both the 1993 accuser and the current accuser, did not return calls for comment.
Mark Geragos, Jackson's lawyer, also did not return calls for comment.
