May 31, 2005 | 4:38 p.m. ET

Analyzing the accuser from a Jackson fan's view (Stacy Brown, MSNBC contributor and Jackson family friend)

MSNBC
As Michael Jackson awaits his fate, the superstar’s fans have continued their support of Jackson, some even taking on the role of analyzing the young accuser’s testimony against the King of Pop.

“You can see even from the video that the (accuser) is not being honest,” said a long time Jackson fan and courtroom observer who calls herself “Lady.”

Several fan Websites say the accuser seemed coached in his actual testimony and the video of the accuser’s first interview with police, taken in 2003 and shown in court last week as the last piece of evidence in the case, proved the accuser was not credible.

The video had a powerful effect on courtroom watchers, if not the jury itself. The accuser, then 13, was close to tears as he spoke to detectives. When asked if Jackson had ever touched him in an inappropriate way, the accuser sat silently for nearly 15 seconds. He then went on to describe a night at Neverland that allegedly began with heavy drinking and ended with Jackson abusing the boy.

But Jackson’s loyal followers weren’t buying it and some offered what could be very plausible explanations that we may even hear in defense closing arguments.

“There’s a pattern to (the accuser’s) behavior that I believe can be used to show when he is lying and when he is telling the truth,” Jackson fan Simon Cameron said. Cameron, who has been one of the more analytical and balanced of Jackson’s fans, gave a full analysis of the then 13-year-old accuser’s performance.

She says:

  • "According to (prosecution witness and comedian Louise) Palanker, the accuser cried when his father told him to call (another prosecution witness and comedian) George Lopez and lie to him about the amount of money in the wallet he’d left at his home."
  • "According to testimony (the accuser) also cried when Dr. Stan Katz made him aware that he would have to testify in court about the molestation. Then when (Santa Barbara County Sheriff’s) Sgt. Steve Robel asked (the accuser) to describe the nature of these acts, (the accuser) got all choked up, according to Robel."

Cameron says a case can be made then that when the accuser is suddenly faced by an authority figure with the prospect of having to lie, he gets emotional. Cameron said an exception would be when the accuser has been “coached by someone in authority to lie about a given issue, then later asked by someone else in authority to tell the truth about that same issue.”

However, an obvious question would then be what would the motive be for this boy to lie about the molestation? An expert has already testified that less than 1 percent of young boys who said adult men molested them have lied about the incident. Most experts contend that it is rare for boys to lie about being sexually molested by men because of the stigma of being viewed as homosexuals amongst their peers.

Indeed, the accuser did testify that students were harassing him at his school. He said they made fun of him after the Martin Bashir documentary aired showing he and Michael Jackson holding hands admitting to sleeping in a bedroom together.

Jackson’s defense team has vehemently argued that this accuser and his family are mere “grifters” and are lying about the molestation as part of an overall conspiracy to debilitate Jackson’s finances.

For Jackson and those who love and care about him, the jury's decision could come by the end of this week. And while that is all that will really matter in the end, Jackson fans say they can smell a rat when there is one in the courtroom. No doubt, Cameron is definitely on the same page as her favorite singer, who hopes the jury feels the same.

E-mail Sidebar@MSNBC.com

May 31, 2005 | 12:51 p.m. ET

Why the defense's decision to rest was a brilliant one (Susan Filan, MSNBC analyst and former Conn. state prosecutor)

In a surprise move, the prosecution rested on Friday afternoon. In an even more surprising move, the defense rested moments after.

At 1:15 p.m., the judge told the jury, “You have heard all the evidence you will hear in this case.”

The evidence portion of the Michael Jackson trial is over.  In a way, however, the trial is just about to begin.  Once the jury gets a hold of it, the case takes on a life of its own, and is out of everyone’s hands.  Nerve wracking.  Exciting. 

On Wednesday or Thursday, the judge is expected to instruct the jury on the law, and then the lawyers will deliver their closing arguments to this jury.  Then the case is theirs.  It will belong to the 12 men and women selected months ago to decide the case.

So how did the case end? The last witness the jurors heard from was the accuser himself.  It was a victory for the prosecution to be allowed to introduce the videotape of the accuser’s initial interview with the police. In a dark and hushed courtroom, we watched the video in which the accuser told the police that Michael Jackson put a hand down his pants and masturbated him. He said it happened about five times.  The Judge cautioned the jury that they were not hearing the videotape for the truth of the matter asserted therein, but only to observe the demeanor of the accuser.  he prosecution alleges this boy was sexually molested by Michael Jackson. The defense contends that the boy made it up, and this videotape is scripted lies. 

The defense had told the court that if the videotape was played, they would recall the accuser to the witness stand for yet another grueling round of impeachment.  But the judge reminded the lawyers that the “case in chief” was over, and that they were in rebuttal and sur rebuttal now.  This would have limited what Tom Mesereau could ask the accuser on the witness stand.  Judge Melville said, “I am not opening up this case again for anybody.”  Mesereau had also threatened to recall the accuser’s mother, the psychologist Dr. Katz, and attorney Larry Feldman.  But in a surprise move, Mesereau rested without calling any more witnesses to the stand, letting this accuser and the prosecution have the last word.

Some courtroom observers think that Mesereau got boxed into a corner by the district attorney and that the defense case ended in the weakest possible way.  Prosecution sources indicate that the prosecution is elated and feels they ended their case in the strongest possible way.  My view of the end of this case is that the district attorney was absolutely correct to rest after the videotape played. Leaving the jurors with one last look at what this case is all about set them back on track and in position to deliver closing argument with the allegations fresh in the jurors’ minds.  But Mesereau’s move was equally brilliant. I know many disagree with my analysis.  Debates rage here in Santa Maria, California about whether Mesereau blew it in the end and over whether the videotape of the accuser was the turning point, or tour de force that some thought it to be.

Here is why Mesereau did the right thing: Mesereau could not put the accuser back on the stand as his final witness.  Had his examination been limited, and had he not been able to score the points he needed to, and had he been perceived as beating up on a vulnerable cancer survivor who claims he was sexually molested, he would have essentially served this case up to the District Attorney on a silver platter. The defense would have called the boy as their witness, which means they would be conducting a direct examination in which leading questions are impermissible. The D.A. however, would have this witness on cross-examination, which means they could ask all the leading questions they like, even limiting his answers to “yes” or “no” answers only. 

For example, assuming the Judge allowed these questions and did not find them beyond the scope of direct, the D.A. could have asked:

“Isn’t it true that Michael Jackson molested you?”

“Yes”.

“Isn’t it true that Michael Jackson showed you erotic materials?”

“Yes.”

“Isn’t it true that Michael Jackson plied you with alcohol?”

“Yes.” 

“Isn’t it true you told the truth on that videotape?”

“Yes.”

That would have been a much worse way for Mesereau to end the case he has spent months dismantling. Whereas the boy’s credibility may now be in question, putting him on the stand one more time would have given the prosecution a second chance to rehabilitate his credibility and make him into a sympathetic victim. 

The defense’s move to end the case also telegraphed to the jury that they did not think much of the videotape.  They were essentially telling the jury that they were not worried about the videotape, that the jury should not worry about it either.  They will argue the videotape is just one more example of rehearsed and scripted lies from an accomplished liar.

This trial has been one giant chess game, and while Sneddon’s move was a great one, Mesereau’s move was equally great.  I repeat, many disagree with me, but I say wait until closing arguments.  There you will see each side turn this videotape to their own advantage and then you will see the jury have to decide whose version of the case they believe.  The videotape clearly put the district attorney’s case back in the hunt, but Mesereau’s decision not to “make a mountain out of a mole hill” was very clever.  He essentially declined to dignify it with a response, signaling to the jury his confidence in his case.  Perception is in part reality, and so much of what goes on in a courtroom is about not giving your opponent the edge.  In the end, juries do not miss a trick, see through all the games, get down to the business of deciding the facts of the case, apply the law to the facts, and render their verdict. 

I have great faith in our jury system, in our criminal justice system, and our rule of law. To see the machine of justice at work up close and personal in this complicated trial has been one of the most fascinating experiences of my life. 

I have to commend Judge Melville for the way in which he presided over this trial. His sense of decorum in the courtroom, his tight legal rulings, his ability to keep the case on track and reign in the lawyers, and his sense of humor have added to my admiration for him.

Stay tuned for more from the courtroom from Susan Filan, MSNBC legal analyst, and former Connecticut prosecutor.

Related link: MSNBC's Meier and Daniels discuss the importance of jury instructions .

E-mail Sidebar@MSNBC.com

May 27, 2005 | 4:35 p.m. ET

A surprise in court today: Michael Jackson’s defense has suddenly rested without presenting a rebuttal case. The surprise announcement from the defense came after jurors saw part of a videotaped police interview with Jackson’s accuser from July of 2003. Defense lawyers had earlier said that they would call the accuser back to the stand for more questions after the tape was shown. Closing arguments are now expected at the beginning of next week, and the jury could have the child-molestation case by Wednesday. Click here to read more details .

May 27, 2005 | 4:02 p.m. ET

What Jay Leno and Chris Tucker were like in court (Susan Filan, MSNBC analyst and former Conn. state prosecutor)

The case that has lasted for months already is soon drawing to a close. It had the feel of a horse galloping towards the barn until yesterday when the prosecution won its motion to play a videotape of the accuser talking to  police in July 2003. This was a victory for the prosecution because it gives them a chance to restore credibility to the victim who has been impeached in the defense’s case.  In response to the video, the defense initially said it wanted to recall the accuser and his mother to the witness stand plus two other witnesses. During the case in chief, the boy and his mother were on the stand for days each. While their testimony was contentious last time, on a second time it could have gotten ugly.

If that had happened, I would have felt like I was watching desperate sumo wrestlers sliding in jello without being able to let go. I think the jury is feeling it too. Just a few days ago, the jury was in constant giggles after breaks. During the lengthy sidebars, the jurors whispered and laughed amongst themselves.  Their humor was contagious and when one juror began to laugh, it spread throughout the jury.  This was a good sign. These jurors will need to continue to get along as they head down the home stretch toward closing arguments, jury instructions, and ultimately, deliberations. The jury now, however, looks like they are watching a fight to the finish.

Michael Jackson looks exhausted. But he has held up remarkably well. He has been on time for court every day, and has behaved appropriately in the courtroom.  No doubt his lawyers have explained to him that he is always under the jurors’ scrutiny and he must measure up to their expectations of how a defendant should behave.  He has never repeated the stunt he pulled on “pajama day.”  He has held up far better, in fact, than most imagined.  I wonder if he feels relieved now that he knows he is not going to testify. 

One cannot get a read from Michael Jackson in court. His body language reveals nothing. His clothes are variations of the same, day after day.  His face is a mask.  He does not speak to the press after court, citing the gag order. His lawyers and his entourage surround him each day as he leaves court and make sure he does not respond to any media bait.  Reporters shout out questions to him, day after day, but Jackson puts his hands together in a sign of prayer, does a little bow, smiles, shakes his head no, as if to say, “I would love to speak with you but I am not allowed.  Please forgive me.”

District Attorney Tom Sneddon lost his cool cross-examining actor Chris Tucker.  Tucker was helpful to the defense. He testified that he met Michael Jackson through the accuser, and that he and Jackson became friends.  He said he warned Jackson about the accuser, saying, "Watch out for this boy… I get a bad feeling about him and his family." Jackson apparently did not heed the warning. But Sneddon was unable to lay a glove on him on cross-examination, clearly frustrated, he got snippy and cranky. At one point, he showed Tucker a photograph of him and his family and the accuser.  Tucker said, “Nice photo, can I have a copy?”  Sneddon shot back, “If you’re a good boy.”  It was one of those moments in a courtroom when you want the floor boards to open up and swallow you. Tucker was evasive and uncooperative with Sneddon on cross.  I was annoyed by him too, but the trick is to never let it get the better of you no matter how difficult the witness is being. The better thing is to let the jury observe the witness’ demeanor and then argue it in closing argument.

Jay Leno was hilarious, but not that helpful to the defense.  Having him on the witness stand was like being on the set of the “Tonight Show.”  I was struck by how nice a guy he is, how down to earth; a regular guy who does so much for sick kids. He calls every kid referred to him through a legitimate charitable organization and he even invites some of them to the set.  He is much thinner in person than he looks on TV. As he left the courtroom, he looked at the sketch artists’ drawings of him and joked around, making faces, saying “pretty good” with his brows raised as only he can do.  On his show that evening, he joked that he had taken the judge’s gavel as a souvenir.  When Judge Melville took the bench the next morning, he opened court by saying, “Where’s my gavel?” 

Melville has one of the driest, funniest senses of humor I have ever observed in a court of law.  If your cell phone goes off in court, you are instantly escorted out by a stern bailiff and banned from the courtroom for one week.  At one point during the trial, the judge’s own cell phone went off.  He rose from the bench and said, “Well, I’m outta here” as if having to exile himself from this case for a week was his lucky break!

This case will end: Each side must then prepare its closing argument, which will be critical in this case. This is one of those cases that may be won or lost in closing argument. As each side tries to assemble the puzzle pieces together in a manner most favorable to them, they ultimately know it will be up to the jury.  There is no stranger feeling than having worked for months, or years on a case, given it everything you’ve got, and then having to let it go to the jury where you will never be able to utter another word in its direction again. The last word is the jurors’. 

Soon enough, the pacing will begin, the clock-watching, the second-guessing.  All this is standard fare waiting for a verdict.  As a trial lawyer, I know how hard it is to wait for a verdict.  I cannot imagine how it will feel to Michael Jackson.

Stay tuned for more from the courtroom from Susan Filan, MSNBC legal analyst, and former Connecticut prosecutor.

E-mail Sidebar@MSNBC.com

Related links:

  • Abrams exclusive : Jesse Jackson talks about Michael Jackson's plans for the future— including a theme park in Africa. Interestingly, he says Michael's family and friends will probably ensure that he will not exercise "risky behavior" again— i.e. have young boys in his bed.
  • MSNBC anchor Lisa Daniels blogs about fatigue over coverage of the Jackson case .

May 25, 2005 | 5:29 p.m. ET

Why I would have loved it if Jackson testified (Dan Abrams)

Does it make me a self-hating lawyer that sometimes I secretly wish defendants would have to testify in their own defense? Don't get me wrong. The Fifth Amendment, an invaluable constitutional right, protects someone accused of a crime from becoming a “witness against himself.”  It's so sacred, prosecutors rightly can't even mention a defendant's refusal to take the stand. 

But let me take off my lawyer hat for a second and say that I really would have really liked to have seen Michael Jackson testify. We found out Tuesday that it wasn't going to happen.  But was it so wrong for me to want to see him on the stand?  Forget all the legal reasoning, whether the prosecution has proved its case, whether the defense has established reasonable doubt, I just want to hear Michael explain why he allowed so many boys to come over to his house for sleepovers.  None of Jackson's producers or spin doctors involved, no British journalists tossing softballs Michael's way. Just M.J. uncensored, live, and on stage, taking the tough questions. 

Has he really never shared a glass of Jesus juice with the accuser or his brother?  Are all these witnesses lying about his conduct with the '93 accuser?  Why all the pornography around the house when kids are there all the time? 

Come on. You didn't really settle all those multimillion-dollar cases back in the '90s for the record companies?

I felt the same way about O.J. and Scott Peterson. I wanted to hear O.J. explain the inconsistencies in his story.  He claimed he so badly wanted to testify. Well, when he finally got the chance in the civil case, it reminded me why O.J.'s lawyers never could have put him on.  Sure did answer a lot of my questions. 

And who didn't want to hear smooth-talking Scott Peterson explain the curious timing of his promise to Amber Frey, that very soon he'd be able to spend more time with her?  And why did he tell some people he went to play golf the day his wife disappeared while telling others he went fishing? 

As in every high profile trial, defense attorneys like Tom Mesereau initially claim their clients want to take stand and they haven't decided.  But those of us who watch these cases know it's rarely going to happen. And with Michael Jackson—well, the risk was just too high.  He might have wiggled his fingers on his head like did he back in that civil trial in 2002. 

Look, as a lawyer I get it.  But as someone who cares about what really happened and not just the legal maneuverings… boy, I would liked to have seen it.

E-mail: DAbrams@MSNBC.com

May 25, 2005 | 2:17 p.m. ET

The two things that could get Jackson aquitted: Distractions and charisma (Stacy Brown, MSNBC contributor and Jackson family friend) 

MSNBC

The most important phase of the Michael Jackson child molestation trial is just days away and both sides are preparing closing arguments.

It might be noteworthy to look at summations from other notable high profile cases.

The Scott Peterson murder trial is the obvious and, perhaps, most logical place to begin. When prosecutors rested their case in chief against Peterson in his double murder trial, many legal analysts and courtroom watchers opined that the case against Peterson was so weak that defense attorney Mark Geragos should strongly consider not putting on a defense at all.

Boy, did we hear the same thing in the case against Jackson.

Peterson, prosecutors said in their all-important closing arguments, killed his wife because fatherhood threatened his “fantasyland double life as a rich, successful, freewheeling bachelor.” They said Peterson had maintained two lives—­ the perfect husband in public, and in private, a cad grudgingly tolerating his marriage­ when the birth of his first child and the expense of raising the boy or paying child support jeopardized the secret side he treasured.

Distractions matter
In the O.J. Simpson case, despite a “mountain of evidence,” prosecutors faced a major distraction that eventually cost them a conviction. Instead of sticking with the basic evidence presented during the case, prosecutor Marcia Clark had to try and explain away the conduct and attitude of one of her star witnesses, former detective Mark Furhman. Furhman brought race into an already emotionally-charged case.

“Is he a racist?” Clark asked the jury. “Yes. Do we wish that the LAPD had never hired him?  Yes. Do we wish that people like this were never on this planet? Yes.”

Furhman, who found a bloody glove at Simpson's mansion in the hours after the murders, testified that he had never used the word “nigger” in the past 10 years. Tape recordings and subsequent witnesses showed he had lied. Furhman then invoked the Fifth Amendment, refusing to testify further.

But Clark's closing argument that Furhman's racism had nothing to do with Simpson's innocence or guilt fell on deaf ears.

When Lyle and Erik Menendez were tried for killing their wealthy parents, a jury hung on whether it was intentional murder or self-defense. Many had argued that the hung jury was a result of distractions that Los Angeles District Attorney Gil Garcetti was simply unable to overcome.

Garcetti later refused a plea bargain deal and retried the brothers. Despite defense attorneys attempt to portray the deceased Jose Menendez as a demonic pervert who tormented his sons, prosecutors closed the case by arguing that brothers had concocted an abuse story while in prison and that the brothers simply lied. The brothers were convicted in the retrial.

Defense attorneys in Jackson's case must argue that the superstar is simply a misunderstood and charitable man who is a vulnerable target for false claims. Prosecutors will have to refocus the jury's attention from the all-out assault on the alleged victim's mother and remind them that, in their minds, a child has been molested.

Amazing charisma
Michael Jackson has an amazing charisma about himself that could sway the jury in his favor. He is a powerful presence.  Some people even melt just by getting a sight of him. 

I recall a tale one of Jackson's nephews told me about the singer and actress Brandy. On a recent visit to Neverland, Brandy, the nephew said, fainted when Jackson came over to speak with her. Jackson purportedly told his nephew that Brandy faints every time he sees her.

Debbie Rowe, Jackson's ex-wife, seemed to melt on the witness stand at the sight of her ex. His power is unmistakable. In some ways, it's a Charles Manson-like feature. In closing arguments in the Manson case, prosecutor Vincent Bugliosi spoke of the power the demonic killer possessed over people.

Bugliosi related one story in which the daughter of a Methodist minister ran away and joined the Manson family. In the process of searching for her, her father was so affected by Manson's charisma that he ended up living with the group for a few months.

Jackson is no Manson, but his power over people can certainly be Manson-esque.

E-mail Sidebar@MSNBC.com

May 24, 2005 | 6:41 p.m. ET

We welcome a new blog to the MSNBC blog family: the Peacock blog.

Abrams Report guest host and guest blogger Lisa Daniels has an entry today. Lisa is an MSNBC dayside anchor:

Ironically, the fact that Michael Jackson is so bizarre may be exactly why Michael Jackson should take the stand. Who better to explain his odd philosophy than Michael Jackson himself?

Click here to read her entry . Both Lisa and Stacy agree, it could have actually been a good thing.

May 24, 2005 | 12:45 p.m. ET

White House hypocrisy on anonymous sources (Dan Abrams)

In the wake of Newsweek magazine retracting its report on the Quran being flushed down a toilet at Guantanamo Bay, White House Press Secretary Scott McClellan said “There is a credibility problem in the media regarding the use of anonymous sources.”  Well he's right.  There is a credibility problem and many in the media need to continue taking greater care with anonymous sources.   

Mistakes are being highlighted like never before and that may be a good thing. But as McClellan relishes his role as the nation's editor-in-chief, I have to ask, what about the anonymous sources regularly cited by the government? After all, wasn't the war in Iraq justified to the public with the use of unidentified sources, offering proof of Saddam's weapons of mass destruction? And government officials regularly speak to the media, but only on the condition that they not be identified.

The Justice Department and the IRS both regularly cite anonymous sources to launch investigations, sometimes even to make arrests. Most of the time, the sources they trust are right. Sometimes they're wrong. The same applies to those of us in the media.Sure, different types of sources are anonymous for different reasons. In some cases, they're eventually named, other times they're not.

Look, I understand why many of you have criticized the media's use of anonymous sources.  After all, my regular viewers know I thought Newsweek should have retracted the story the moment they questioned their source and that the delay hurt the credibility of everyone in the media. But it's a little too convenient for the White House press secretary to say essentially that we should not be doing what in reality they do as well. 

E-mail: DAbrams@MSNBC.com

May 23, 2005 | 1:30 p.m. ET

Why Jackson must take the stand to save his career (Stacy Brown, MSNBC contributor and Jackson family friend)

MSNBC
Michael Jackson has stated over and over that he's completely innocent of not only committing child molestation but of any improper conduct at all with children.

Pop's most electric entertainer ever has said repeatedly that he'd never hurt a child. “I'd slit my wrists before I'd hurt a child,” Jackson has said. Like most celebrities, Michael Jackson probably shares an ego the size of California and is no doubt determined to reclaim his throne as the King of Pop.

As they say in the South “ain't gone happ'n.”

Jackson's defense will rest its case later this week and the superstar will probably not take the stand in his own defense. Yes, it is his right, as with every defendant, to remain silent. And, yes, because he doesn't take the stand does not mean he's guilty.

But, if you believe all of the press reports and even listen to commentators such as MSNBC's legal analyst and former Connecticut state prosecutor Susan Filan, Jackson's defense has done enough to raise reasonable doubt. Many have said that the case against Jackson was completely without merit and Jackson himself has stated the same thing, which should bolster his and his attorneys confidence in letting him undergo any cross examination District Attorney and his decades old nemesis Tom Sneddon may prepare.

But Jackson, I submit, not only wants to be found not guilty, but he also wants to continue his career in true Jackson fashion. But to save his career Jackson must be completely exonerated. And taking the stand with "nothing to hide," could wipe out the suspicion that comes with being accused. Since prosecutors were allowed to introduce past bad acts testimony, Jackson could finally tell the world and a jury, under oath, that he did not molest a boy he paid millions to settle a molestation case in 1993. He could finally put to rest any doubts about that case too.

In an interview earlier this year with Geraldo Rivera that seemed to be more of an infomercial than question and answer session, Jackson expressed a desire to perform and create music again.

His career had already begun to slide long before his arrest and this trial. The never ending controversies and the unavoidable topic of whether he really has the skin disease vitiligo have haunted him. Jackson unquestionably went from strange to weird to bizarre at the blink of a moonwalk.

In his quest to repeat the glory days of “Thriller,” Jackson has made a ton of missteps, including the infamous baby dangling incident in Berlin, putting Spiderman masks on his children before taking them to a zoo, publicly calling then-Sony Chief Tommy Mottola a “racist,” and the disastrous Martin Bashir documentary (which led to his current predicament).

Many entertainment public relations firms I've spoken with have said re-inventing Jackson and his career is totally impossible. Most say they wouldn't touch that task for any sum of money. However, there is one possible way for Jackson to at least take a step toward salvaging some of his lost glory. Jackson must take the stand before lead defense attorney Tom Messereau utters the words “your honor the defense rests.”

Jackson needs to be as adamant under oath as he was with Geraldo Rivera and Ed Bradley that he didn't molest anyone. He needs to explain, under oath, why it's okay to share his bed with young children whom he's not related to. He needs to explain, under oath, how a paradise such as Neverland became a place where even his own employees testified that they too wouldn't allow their children to go there. “Some of the activity (at Neverland) was beyond my comfort level,” defense witness and ranch safety coordinator Violet Silva testified in court.

Michael Jackson's chances of being acquitted appear strong. His chances of saving and rebuilding a career that has been demolished by bulldozer-like accusations and charges are nil if Messereau doesn't stand up and say, “Your honor, we call Michael Joseph Jackson.”

E-mail: Sidebar@MSNBC.com

May 20, 2005 | 2:15 p.m. ET

How Geragos' testimony could be Mesereau's nightmare (Susan Filan, MSNBC analyst and former Conn. state prosecutor)

There have been several instances of high drama in the Michael Jackson courtroom recently.  First,  Judge Melville ordered Jackson's former defense attorney Mark Geragos to appear under threat of arrest warrant. Second, once Mark Geragos realized that he only had a partial waiver of the infamous attorney-client privilege from his former client, he informed the judge that he would not pierce the attorney client privilege even if it meant he would be held in contempt.  Third, Jackson's defense attorney Tom Mesereau was accused by Judge Melville of misrepresenting to the court, and to Geragos, the nature of the wavier.  It cannot get much worse for a trial lawyer than to be accused of misrepresentation to the court.

And for more drama, Mark Geragos returns to the witness stand to finish his testimony, but only after Judge Melville holds a hearing and renders his ruling. What was the problem with Geragos' testimony? The only way Geragos could testify in this case about conversations he had with his former client is if Michael Jackson waives the attorney-client privilege in writing.  When Geragos first took the stand, he told the judge that he was uncomfortable about testifying because he had only been “told” of the waiver, but it was not on the record, nor had he seen it in writing. So Judge Melville asked Mesereau to put it on the record, which he did, and then he asked for a written waiver to be provided before the end of the day. Mesereau agreed. The judge turned to Geragos and asked him if he was satisfied with those representations and he said he was.  He then began to testify, and did so favorably for the defense. But, in the middle of cross-examination by the prosecution, he asserted the attorney client privilege indicating that he learned at the break that his former client Michael Jackson had only issued a partial waiver, not a complete waiver.  Well, Judge Melville was upset, and rightly so, because everyone had relied on Mesereau's word, which he was now going back on.  The judge said, “Mr. Mesereau, you cannot give with one hand and take with the other.” 

Now the problem is what to do with Geragos' testimony. Does it get stricken from the record entirely? Does Michael Jackson solve the problem and execute a full waiver, which could allow into evidence potentially damaging admissions, or does the judge allow the partial waiver?

It was awkward to hear Geragos refuse to answer questions from Mesereau in front of the jury. It almost sounded like Geragos was taking the Fifth Amendment in front of the jury. He refused to answer several questions before the judge halted the testimony entirely. The testimony sounded as if  Geragos was saying to the jury “I will only tell you the parts that are helpful to my former client, and leave out the bad stuff.” And as I sat there,  I wondered, what isn't he saying? And why won't Michael Jackson waive the privilege? Could it be that Jackson denies the allegations in this case but admitted to other acts of molestation in the past? That is why the privilege problem is so bad for the defense. The jury could draw the worst possible inference from Geragos' refusal to answer questions. And while Geragos may be doing it for legal reasons, the jury could read something bad into it.  And even though Mesereau interjected objections to the questions as irrelevant, in a possible effort to sanitize Geragos' refusal to answer the DA's questions, the jury left court that day with Geragos' refusals ringing in their ears.  

Geragos returns to the stand first thing this morning, and we shall see how the judge resolves this dilemma. This is any lawyer's worst nightmare. As I was sitting there, my heart sank for Tom Mesereau. It felt like he was sinking in quicksand.  He knew he had made a terrible mistake, and all he could do to correct it was to beg the court to believe him that it was an innocent mistake and not an intentional misrepresentation. But after the judge had already concluded “misrepresentation,” the implication was that it was not a mistake and he did it on purpose.  At that moment, the more you talk to an angry judge, the worse it gets.  Everything you say begins to backfire, so you should stop talking but it looks even worse if you are silent.  I think every trial lawyer has experienced a moment like that in a courtroom. And every trial lawyer knows you have to be prepared to take your lumps once you walk into a courtroom. 

But this mistake could have some bad fallout: First, Geragos' testimony could be stricken from the record which would be bad for Jackson. Second, Mesereau could have to execute a full waiver which could also be bad for Jackson. Third, Mesereau could be disciplined by the court or referred to a state bar grievance committee. As a trial lawyer, all you have is your word and your reputation. A trial lawyer needs his or her reputation in order to engage in the risky art of trial work. Some think that Mesereau did this on purpose, but I think it was a mistake about which he feels badly. To deliberately misrepresent to the court, in a high stakes celebrity trial, with the eyes of the world watching, is legal suicide. As much as Mesereau may wish to win this case, he has to live to fight again another day.

As the case seems to be winding down, tension is mounting for both sides. You can be sure that there will be no shortage of legal drama in this high stakes battle in a Santa Maria, California courtroom.

Stay tuned for more from the courtroom from Susan Filan, MSNBC legal analyst and former Conn. prosecutor.

E-mail Sidebar@MSNBC.com

May 19, 2005 | 3:29 p.m. ET

Let's not forget about the Lefkow murders and the need to protect our judges

Yesterday, for the first time since her mother and husband were shot to death in her Chicago home, U.S. District Judge Joan Humphrey Lefkow spoke out, testifying before the Senate Judiciary Committee, asking for more resources to protect federal judges and responding to recent attacks on our nation's judges.  

On February 28, Bart Ross broke into Lefkow's home, hid in her basement, waited for her to come home so he could kill her. Instead, he shot and killed her husband Michael and mother, Donna Humphrey. Ross apparently was angry that Lefkow dismissed his medical malpractice suit. He committed suicide at a traffic stop 10 days later and left a note. Judge Lefkow was also the target of a murder plot by white supremacist Matthew Hale, initially believed to be a suspect in the murders. 

In her plea for increased protection of federal judges, Lefkow touched on the more personal side of what the loss of her mother and husband means to both her and her family. 

JUDGE JOAN LEFKOW: Michael was a man whose excellent character and accomplishments at the bar and as a family man have been described in many recent news reports, and I will not attempt to recount them.  On a personal level, however, he was a man who at the age of 64, looked to the future with hopefulness and anticipation. A litigant who was angry with me shot him in the head and my aged mother on February 28 of this year for no reason, other than that they were in his way on his road to murder me. 

He could have easily added my daughter, who is 16 years old and lived in our house, and me. 2/28 is our own personal 9/11. Since 2/28, our family includes a daughter and her husband who have to explain to their young children why their grandfather is now with God and they will never see him again. Two daughters who will not have their beaming father to walk them down the aisle at their weddings in the coming year, and two who will not have dad to be there to join the fun at their upcoming graduations from high school and college. 

From now on, they will have a father's guidance only through the memory of what he was to them. An entire family has lost its ability to feel safe when we walk through the door of our own homes. Beyond the family, there is a community of clients, friends, fellow church members, and neighbors who simply miss this man and woman who were significant parts of their lives in one way or another. Finally, I'm the wife who wakes up in the morning, not to a cup of coffee presented by my husband of 30 years, to reopen what we called the endless conversation of marriage, but to an open book that I was reading in an effort to banish the memories of 5:30 p.m. on the day our world changed forever. 

Just last Friday, Judge Lefkow was having dinner at a Chicago restaurant. A man apparently taped a profane letter on the window near her table. 

I said it before , I'll say it again: We need to spend the money to protect this nation's judges. 

E-mail: DAbrams@MSNBC.com

May 18, 2005 | 11:50 a.m. ET

Resting assured? Jackson defense may end case next week (Stacy Brown, MSNBC contributor and Jackson family friend)

MSNBC

Confident that they have obliterated an extremely weak case, defense attorneys in the Michael Jackson child molestation case have decided to rest next week, according to several sources within the Jackson family.

"It is the weakest of cases and he shouldn't have been in the courtroom in the first place," said one family member who doesn't want to be identified.

The case against the King of Pop has lasted 12 weeks and featured testimony from nearly 100 witnesses (including myself). Many legal observers who have watched the case unfold have considered it flawed at best, with some going as far as saying that it was a miscarriage of justice to have initially bought charges against the superstar.

"The state hasn't proven anything," NBC Legal Analyst Ron Richards said after prosecutors rested their case two weeks ago.

After starting its case with somewhat of a whimper themselves, the defense has been relentless in its quest to show that the accusing family, particularly the mother, has a history of lying.

Jackson's defense team blitzed through nine witnesses Monday, three weeks into a case that was projected to last six to eight weeks. Much of the testimony was intended to refute claims by the accuser's mother that the family had been held against its will by Jackson and his alleged co-conspirators. The mother testified that despite salon visits, shopping trips and a dental appointment for her children, she was always followed by Jackson's "positive PR film crew," her conversations were monitored, and she never had an opportunity to escape or seek help.

Former Neverland administrative assistant Katie Bernerd testified that the mother called from her guest suite at one point and said she wanted Bernerd to arrange a waxing appointment.
"She wanted it done right away, within the hour," Bernerd recounted.

"Had any guests at Neverland ever made a request like that to you before?" defense attorney Thomas Mesereau asked.

"Never."

Mesereau then put Jackson's own cousin, 16-year-old Simone Jackson, on the witness stand and she testified that she caught the young accuser and his brother sneaking alcohol one late night at Neverland. Simone Jackson's testimony, the defense thinks, blew holes in the charge that Jackson plied the young boys with alcohol.

Defense attorneys apparently are counting on the jury to believe that major holes in the conspiracy and alcohol charges also means that no molestation ever took place. "It was all made up," said one Jackson family member. "He was only trying to help that boy and this case was all about lies and money."

Prosecutors, who no doubt are surprised by the news of the defense's intentions to rest next week, now will have to ready their rebuttal case. That part of the case was expected to feature lots of so-called bad character witnesses, who were going to be called to counteract good character witnesses that Jackson's team had threatened to call.

The strategy by the defense to put an end to its case probably means that they jury and members of the media will not see the likes of Elizabeth Taylor, Stevie Wonder, Kobe Bryant, Quincy Jones, Larry King and Jay Leno take the stand. Will the defense rest with the peace and confidence that Jackson will return to Neverland free and clear of the cloud that has hung over that ranch?

E-mail Sidebar@MSNBC.com

May 17, 2005 | 7:03 p.m. ET

Jackson trial: Clever defense strategies (Susan Filan, MSNBC analyst and former Conn. state prosecutor)

Susan Filan
Today is the beginning of my second week in the Michael Jackson trial as an MSNBC legal analyst and a former Connecticut prosecutor. This case has so many twists and turns, one is on the edge of one's seat, as defense witness after defense witness takes the stand and testifies in a manner completely inconsistent with the prosecution's theory of the case.  Michael Jackson is either a serial child molester, or he is a victim himself of opportunistic vultures who prey on his generosity and innocence.

Michael Jackson has his good days and his bad days. Some days he looks like he is in pain and moves around in his seat, squirming as it were, and other days, he sits as still as a wax figurine.  He is almost always dressed in the same, black suit, armband, colorful vest, white shirt, white socks and black shoes.  His mom and dad have been in attendance, and on a few days, we saw Jackson's brother Jermaine sitting with his arm around their mom.  His brother Randy even showed up for the first time since the trial started.

The defense's theory of the case, that Michael Jackson is a child-like innocent who cannot protect himself from those seeking to profit from his genius, has found support in the testimony of the witnesses we have heard  over the last few days.  The defense started off on shaky ground, but they seem to have picked up steam and are on a roll now.

The key witnesses, this past week, have been: Macaulay Culkin, Mark Geragos, and Michael Jackson himself.  Yes, that's right, Michael Jackson testified without having to endure the rigors of cross-examination.  How did he do this?  Very cleverly. His lawyers introduced the "outtakes" of the now infamous Martin Bashir documentary—the very documentary that got Michael Jackson in hot water to begin with which generated negative publicity throughout the world.  In the Bashir documentary, Jackson admits that he enjoys sharing his bed with young boys, and sees nothing wrong with it.  The question is, is he sleeping with young boys, and nothing is happening, or is he in fact sharing his bed with the implication being that sexual conduct is taking place.  

In the outtakes, actually video shot by Jackson's own videographer while the Bashir documentary was being shot, we see Michael Jackson with a startling effect.  We almost feel sorry for him— the misunderstood man-child who is sad and lonely— who only finds solace in the innocence of children and animals.  In this video, the jury gets a sneak preview into Jackson's mind and into his world, perhaps paving the way for him to actually take the stand in his own defense.    

We also heard Michael Jackson testify through his former defense attorney, Mark Geragos.   Geragos, as any good defense attorney would,  staunchly defended his former client, maintaining his innocence before this jury.  But for anyone to think he would do otherwise is foolish.  So how valuable is his testimony really?  He was an affable witness, answered the questions and was at times entertaining and funny.  When asked for his educational background, he said, "I went to college, went to law school, and took the bar exam."  That brought a chuckle.

Geragos testified  that Jackson told him that he never touched the accuser in this case inappropriately… that "nothing happened."   And Geragos seemed to be telling the jury "and I believed him," because the actions he took in trying to protect his client afterwards are consistent with the position that his client was innocent and was about to become an unwitting victim of opportunistic money grubbers.  Geragos gave the jury a new explanation for what had been done, that he thought a "crime was going to be committed against his client."  When Mesereau asked, and "what crime is that?" Geragos replied, "I was afraid he was going to be 'shaken' down.“ 

It was Geragos, so the defense wants us to believe, that put the accuser and his family under surveillance, tape recorded a statement from them, and videotaped the DCFS interview… It was not Michael Jackson at the helm of a dark conspiracy with the unindicted alleged coconspirators.  Now what had sounded like a dark conspiracy during the prosecution's case, all of a sudden, sounded like nothing more than a defense lawyer's strategy to protect his client from potential harm.  

In fact, Mark Geragos' testimony previewed the defense's closing argument. The jury was riveted. Geragos, clearly uncomfortable on the stand, wishing he was not there, nonetheless had the jury eating out of his hand.  He emphasized that point when he was asked, why an investigator was present for the interview, Geragos replied, "So I would not end up on the witness stand like I am today."  The jury laughed and all the lawyers in the room chuckled knowingly.

No lawyer ever wants to end up on the witness stand, especially when forced to testify about a former client. Few things are sacred in law, but attorney-client privilege is one of them.   Lawyers are right to try to protect that privilege, if not on principle alone, out of fear of malpractice lawsuits and grievance hearings.  

By the way, it was an extremely clever strategy for the defense to have the jurors hear from Michael Jackson and Mark Geragos near the beginning of the defense case. This now becomes the framework upon which the rest of their case will hang.  

The burden shifts back to the prosecution and they must be prepared on rebuttal. They need to sharpen their knives on cross-examination in order to make headway, or at least, not to lose more ground.

Stay tuned for more from the courtroom from Susan Filan, MSNBC legal analyst, and former CT prosecutor.

E-mail: Sidebar@MSNBC.com

May 17, 2005 | 2:15 p.m. ET  

Why journalists should be quick to admit mistakes (Dan Abrams)

Many in the media have a problem admitting when we get it wrong. The latest flap is over a Newsweek magazine story reporting that an internal government report found U.S. interrogators at Guantanamo Bay desecrated detainees' copies of the Quran, in one case, flushing a Quran down the toilet. These are serious allegations. 

The news item led to heavy riots in Afghanistan and Pakistan with at least 16 people killed in the uproar.  Well now it seems the story wasn't accurate and yet Newsweek initially refused to retract the story, releasing only an apology in this week's new issue. Only late Monday did they finally retract and that delay of 24 hours cost us all some credibility. Initially the editor said only “We regret that we got any part of our story wrong and extend our sympathies to victims of the violence and to the U.S. soldiers caught in its midst.”

They conceded that the government source, their source, said he now couldn't be sure the information was in the official results of the Guantanamo investigation. It turns out it may have been from a detainee just trying to stir up trouble and wasn't credible. Newsweek initially cited the fact that when the government was asked to comment, two separate Defense Department officials didn't deny the story. So what? 

If Newsweek was unsure of the truth of its story, particularly one this sensitive, why not immediately retract and then continue the investigation?  Not the other way around.  It shouldn't be that hard for them to say “Look, we blew it.” If it turns out they were right, they can report it again later. This is what got CBS News into trouble as well— the unwillingness to say “If we knew then what we know now, it never would have made it out.” 

Look, we all make mistakes. Journalists are no exception. We have an additional obligation to admit it quickly. Is it any wonder that the University of Connecticut released a survey today that found that 72 percent of journalists said their profession did a good job or excellent job of reporting information accurately, but  only 39 percent of the public felt the same way? 

The administration is often going to be angry with news reports, but if Newsweek itself conceded they were doubting the source, the story should have been pulled immediately without another delay that further erodes public trust in what we all do. 

E-mail DAbrams@MSNBC.com

May 17, 2005 | 12:56 p.m. ET

The scoop from the 'Abrams Report'

Dan was very excited about yesterday's Supreme Court ruling allowing vineyards to sell wine directly to out-of-state consumers. If you didn't already know, Dan is a big time wine lover and some of his favorite wines aren't sold in New York so until now he hasn't been able to buy them without making a special trip to the vineyard. 

Here's the story link .

Plus, the house where Scott Peterson killed his wife Laci is on the market and while you might think it would not be the most popular house to move into, the realtor has reportedly already had three offers for it!

Get the latest legal news on 'The Abrams Report,' and from our blog and newsletter!

May 16, 2005 | 4:06 p.m. ET

Jackson defense still must overcome the truth: He sleeps with boys (Stacy Brown, MSNBC contributor and Jackson family friend)

MSNBC
Things have picked up for the defense in the Michael Jackson child molestation case. After their first five witnesses stumbled out of the gate, the defense has been able to score major points and was even able to put on former Jackson attorney Mark Geragos, who made glowing comments about his ex-client.

Despite that, Jackson's team must still overcome the truth about their client. That truth is that he sleeps with boys. A parade of witnesses both for the prosecution and now for the defense has testified that young boys, specifically between the ages of 8-years-old and 13-years-old, have slept with Jackson.

There has been testimony in this now 12 week-old trial that Jackson molested some of these prepubescent boys. There has also been testimony from some of the alleged victims that they were not molested.

With a timeline that makes sense only to those who think real life is an episode of the X-Files, and suspect evidence, Jackson may very well be looking at freedom in the near future. He, however, will not be exonerated.

Explanation: O.J. Simpson was found not guilty based on the law, which gave the jury reasonable doubt. Does it mean that Simpson was exonerated? Not at all. Simpson was in the right jurisdiction at the wrong time. He got a jury who looked for an excuse to let the former football great go free. They found an excuse in Mark Fuhrman. They found another excuse when a detective admitted to carrying some of Simpson's blood around for a bit too long.

Most of all they found Johnnie Cochran.

The late great Cochran's former client Michael Jackson has another attorney/crusader on his side that just may win over this jury in Santa Maria as Cochran did down south. Tom Mesereau's charisma and courtroom savvy is very similar to Cochran's.

Mesereau is a master at cross-examination and has a flair for the dramatic. However, the one thing Mesereau is facing that Cochran didn't have to is the fact that his client has admitted to half his crime, and that's sleeping with his alleged victim. See, that's tantamount to O.J. admitting to being on Bundy Drive with a butcher knife at about 10:15 p.m. on the night of the murders of his ex-wife and her friend.

Jackson said one of the reasons he sleeps with these young boys is because children haven't betrayed him. “Adults have let me down,” he said. Welcome to the real world Michael Jackson.

Defense attorneys for Jackson have paraded choreographer Wade Robson and his fellow Australian country mate Brett Barnes to the witness stand to say they slept with Jackson and nothing happened. Even former “Home Alone” star Macaulay Culkin came to Jackson's defense.

With the possible exception of Culkin, who still conceded he slept with Jackson when Culkin was a little boy, holes the size of the potholes in New York City roads after a winter storm were punched into Robson and Barnes' direct testimony.

Testimony from Robson's mother revealed that she cried one Mother's Day because her young son wanted to be with Jackson and not her. Barnes' sister testified how her brother slept alone with Jackson for countless nights.

Jackson and those who support him say that he's being picked on unfairly. “Why can't you share your bed?” Jackson asks. Supporters and Jackson argue that as a superstar the children want to sleep with him, despite testimony that Jackson even cried when he was told he couldn't sleep with a young playmate.

Yes, I can envision children being so smitten with a visit to a superstar's home and not wanting to let him out of their sights. But, is it really a defense for sleeping with these boys for nights on end who are of no relation to you?

If you listen to the pro-Jackson propaganda, you'd be led to believe that he is the only superstar singer so loved by children.

Prince, Madonna, and Springsteen all share the status of being music legends who maintain a major following amongst the young.

They too have been sued, taken advantage of and have had their trust broken by adults. No where have I read or heard about any of them sleeping with young boys or girls.

Some may argue that trio had not reached the heights of Jackson. With the possible exception of Springsteen, I disagree. No, none of them have sold records like Jackson and have performed to crowds the way Jackson has. But Madonna can still pack Wembley, and Prince was the biggest moneymaker in 2004.

Superstars throughout history such as, Frank Sinatra, Paul McCartney, John Lennon, James Brown and a host of others have somehow avoided the problems that come with sleeping with young boys not related to them.

We've been besieged with movies, books and stories about the late King of Rock and Roll. We've been educated by how Elvis Presley too was taken advantage of throughout his illustrious career. By now we must know everything about Elvis. But, unlike the King of Pop, we still have never heard about Elvis turning to little boys for comfort.

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