Guest: B.J. Bernstein, Daniel Horowitz, Susan Filan, Jim Moret, Jim Thomas
DAN ABRAMS, HOST: Coming up, runaway bride Jennifer Wilbanks charged.
She‘s now facing up to six years in prison.
ABRAMS (voice-over): It wasn‘t running that got her in trouble, it was the false statement she made about why and the police report she made up about being abducted. Is she really going to serve time?
And the defense rests. Jurors could be deciding Michael Jackson‘s fate this time next week. Prosecutors took 10 weeks to make their case. The defense just two and a half with no Michael Jackson on the stand. Was it enough?
UNIDENTIFIED MALE: Had my little cell phone camcorder with me while I was in the witness holding area...
UNIDENTIFIED MALE: Oh yes...
UNIDENTIFIED MALE: ... and I got pictures of all the other witnesses.
Show that picture we‘ve got of the other witnesses. There they are...
ABRAMS: Jay Leno on his big day at the courthouse.
The program about justice starts now.
ABRAMS: Hi everyone. First up on the docket, runaway bride Jennifer Wilbanks charged. She probably never imagined her flight from her husband-to-be could lead to this. Today, Gwinnett County District Attorney Danny Porter announced that Wilbanks‘ bad case of cold feet could put her in a warm cell. After presenting her case to a grand jury...
(BEGIN VIDEO CLIP)
DANNY PORTER, GWINNETT COUNTY, GA DISTRICT ATTORNEY: They‘ve returned an indictment charging Jennifer Carol Wilbanks with one count of the offense of false statements and one count of the offense of a false report of a crime.
(END VIDEO CLIP)
ABRAMS: If convicted on both counts, Wilbanks could be sentenced up to six years in prison and $11,000 fine, even though the actual sentence would be nowhere near that. Police, the FBI, many good Samaritans searched high and low for Wilbanks, fearing she had been kidnapped and that was the story she told a 911 operator and the Georgia authorities when she resurfaced four days later.
(BEGIN 911 CALL)
DISPATCHER: Did they have any weapons on them?
WILBANKS: Yes they had a huge pistol and a small handgun.
DISPATCHER: Do you know if they were real?
(END 911 CALL)
ABRAMS: Wilbanks later admitted it was a hoax and while she‘s gone into some form of psychiatric treatment...
(BEGIN VIDEO CLIP)
PORTER: There has to be a consequence for lying to the police. And we don‘t want, as a society, to allow people to lie to the police.
(END VIDEO CLIP)
ABRAMS: Now Wilbanks‘ attorney has just released a statement, though you could call it a non-statement. Quote—“As you know Jennifer is in intensive treatment and we had hoped that we would make—be able to make a statement today. However we are unable to make a statement at this time. We apologize for the inconvenience.
“My Take”—I said I thought he would file charges. I said I thought that would be the right thing. B.J. Bernstein didn‘t agree with me, former prosecutor from Gwinnett County right there where the case is unfolding. Susan Filan is a former Connecticut prosecutor and MSNBC analyst, and Daniel Horowitz, the great defense attorney.
All right, B.J., you know, I mean what do I know but...
B.J. BERNSTEIN, FORMER GWINNETT CTY GA PROSECUTOR: Well...
BERNSTEIN: ... you knew what the district attorney is going to do. But I am still going to hold out that this will not end up being a felony, depending on how the defense attorney handles...
BERNSTEIN: ... this case before the judge.
ABRAMS: Yes, I agree with that. I mean I think, look, they will plead it down to some sort of misdemeanor. And look, B.J., you know that office as well as anyone. What are we talking about? Are we talking about any prison time, jail time? Anything?
BERNSTEIN: I don‘t think we‘re talking about prison time and even if the District Attorney‘s Office recommends it, the judge that‘s been assigned to this case is one who has worked as a trial lawyer for a number of years and kind of knows the difference between a very serious crime and just you know something that may be a crime but doesn‘t rise to the level deserving jail time.
ABRAMS: I‘ve got to tell you, I think Danny Porter said it well at the press conference when he said this.
(BEGIN VIDEO CLIP)
PORTER: I don‘t think sympathy plays into the decisions that I make.
On a personal level, I‘m glad we‘re not investigating a murder kidnapping. I‘m glad she‘s home. I‘m aware of some of the issues that are involved in this. But in terms of making the decision, I have to follow the evidence and follow the law. It‘s—any sympathy that‘s involved or any mitigating factors will come into play in the disposition of the case not in the charging decision.
(END VIDEO CLIP)
ABRAMS: Daniel Horowitz, you know, this doesn‘t surprise me. And I don‘t know why some people seem surprised. I mean I had someone ask me yesterday, is he really going to charge her? Come on, I said yes, he‘s going to charge her.
DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY: Dan, I‘m not surprised, but I‘m outraged.
HOROWITZ: I mean we‘ve sunken to the level—because she‘s mentally ill. She‘s probably physically ill...
HOROWITZ: She probably suffers...
ABRAMS: And if she were...
HOROWITZ: ... from Graves‘ disease...
ABRAMS: And if she were a Hispanic or African American who didn‘t look like the nice girl next door, would you be telling—talking to me about mental illness?
HOROWITZ: Of course, Dan. I totally support giving people treatment when they‘ve done something out of illness rather than evil...
ABRAMS: Wait, wait, wait...
HOROWITZ: ... and I...
ABRAMS: ... but Daniel, what percentage of crimes do you think are committed by people who have some level of mental illness? My guess, if you‘re going to define mental illness pretty broadly, that a good amount of people who commit crimes have some—something wrong with them, let‘s say it that way.
HOROWITZ: I agree.
HOROWITZ: You‘re totally right...
HOROWITZ: ... look at our criminal justice system differently...
ABRAMS: So right...
HOROWITZ: ... for that reason.
ABRAMS: Right. Under your criminal justice system we don‘t charge anybody.
HOROWITZ: We don‘t charge people if they don‘t physically harm others or in some way really seriously impair the rights of others. Dan, she was a runaway bride, as we call her, the media made millions of dollars publicizing her story...
ABRAMS: Oh, it‘s the media‘s fault...
HOROWITZ: ... and now we want to punish her.
HOROWITZ: It‘s not the media‘s fault. It‘s just reality...
ABRAMS: ... always the media‘s fault...
HOROWITZ: ... and this is a political...
ABRAMS: Let‘s just...
ABRAMS: Let‘s just all thank our lucky stars for one thing and that is that Daniel Horowitz is not this nation‘s attorney general, all right? Let‘s all be relieved at least about that.
All right, Susan Filan, surprised?
SUSAN FILAN, MSNBC LEGAL ANALYST: No. I‘m relieved. I‘m delighted. It‘s the appropriate thing to do. And that district attorney sounded so fair and so wise and so compassionate. Because clearly she needs to be charged with a crime. But how we dispose of the case is entirely another matter. I‘ve said all along her illness goes to sentencing...
FILAN: ... not to whether to charge her or not...
FILAN: So I‘m delighted that finally—and to have a grand jury return the indictment is perfect. Now it‘s not his decision.
FILAN: He can‘t be accused of being swayed by the media or by sympathy. The grand jury looked at the facts plain and simple and said, bang...
FILAN: ... criminal activity.
ABRAMS: And the bottom line, and I think Danny Porter was right in saying that he can still possibly plead this case down. Here is what he said.
FILAN: Sure. Look this isn‘t the...
(BEGIN VIDEO CLIP)
PORTER: The action by the grand jury does not remove my discretion to dispose of the case to a plea to a lesser charge or to proceed on to trial. Those are my choices.
(END VIDEO CLIP)
ABRAMS: I don‘t know if you could hear that with Susan sort of yapping over the beginning of his statement, but Susan, go ahead. What did you want to say?
FILAN: I said it‘s not the Lindbergh kidnapping and she doesn‘t deserve to go to jail, necessarily, but she absolutely had to have been charged. I‘m done yapping, Dan.
ABRAMS: All right, now B.J., give me a sense of this office. All right, you know Danny Porter. You know this office. Bottom line, it seems to me they are going to have to reach a deal or no one is going to want this case to go to trial, right?
BERNSTEIN: I think they‘re going to try to get it resolved without a trial. Because it would be just a complete circus and I think the judge will be looking at everybody, going I can‘t believe I‘ve got to try this case on top of the fact that it‘s being prosecuted. But, if they stick hard to that felony, and if he doesn‘t let that go, then you may force this into maybe not a jury trial, but a bench trial. Because under Georgia law, I do think there‘s some problems with technical, what the felony law is, compared to the misdemeanor law.
ABRAMS: Meaning in terms of the kind of...
BERNSTEIN: And the lawyer may want to make...
ABRAMS: I apologize for interrupting. I was just going to say in terms of the amount of time that she might have to spend in jail or prison?
BERNSTEIN: Right. Well, in terms of how long she would be on probation. And honestly, when you become a convicted felon, it‘s a problem for you life long in terms of you lose your vote—you know your right to vote, you lose your rights on firearms. It obstructs certain jobs that you‘re going to get. So the steaks are high, even if she‘s not going to jail, if we‘re talking about the felony.
ABRAMS: Yes. Daniel, you‘re the defense attorney, you‘re representing Wilbanks. You come to the D.A., you say, look, let‘s make a deal, right?
HOROWITZ: No, I say, if you don‘t drop these charges and let her go into treatment as the only deal I‘ll make, then I will get you a trial, I will put up the fact that she is ill, physically, that affects her mental state, and that nobody was harmed by this. It‘s a purely political decision. I will basically threaten to kick his rear.
ABRAMS: Oh yes...
HOROWITZ: That‘s what I would do...
ABRAMS: Even though—I‘ve got to tell you...
UNIDENTIFIED FEMALE: Oh, that‘s not a good idea...
ABRAMS: yes, I don‘t think that‘s such a good idea politically either, Daniel. You‘re not going to get a whole lot of sympathy...
ABRAMS: ... for that...
HOROWITZ: I don‘t want sympathy. I want...
ABRAMS: Look, they‘re going to be—go ahead.
HOROWITZ: There‘s no discretion. There‘s supposed to be something called prosecutorial discretion...
HOROWITZ: ... where a prosecutor looks at the whole of the case.
This woman is—has got a scarlet letter on her forehead...
ABRAMS: Does this bother you, Daniel...
HOROWITZ: ... she‘s already suffering.
ABRAMS: Daniel, does this bother you? Let‘s listen.
(BEGIN 911 CALL)
DISPATCHER: And the person that did this to you, was it a he or a she?
WILBANKS: It was a Hispanic man and a Caucasian woman.
WILBANKS: It happened in Duluth.
(END 911 CALL)
ABRAMS: She was not even charged for making that phone call. The New Mexico authorities decided we‘re not going to charge her. That—you say prosecutorial discretion, Daniel, that comes into the mix when you‘re talking about prosecutorial discretion. They‘re not saying oh, she‘s going to get charged for each and every phone call she made. They‘re saying look, we‘re looking at the totality of the circumstances and she‘s not even going to have to pay any price for that 911 call.
HOROWITZ: But, you know Dan, she‘s already paying the price. She is Jennifer Wilbanks. She‘s the person who created this nonsense out of illness. She‘s already suffering and the rest of her life...
FILAN: And she has to be held responsible...
HOROWITZ: ... she‘s going to be that person—oh no, she doesn‘t.
You‘re not the arbiter of who‘s held responsible...
FILAN: She has to be held responsible...
HOROWITZ: ... or not. She is...
HOROWITZ: Who says so? She‘s already suffering. You do not have to punish her. You‘re not her parent. She‘s a human who‘s in great pain...
FILAN: Wait a minute...
HOROWITZ: ... show some sympathy for once.
FILAN: So if you commit murder and you kill someone and you feel really bad about it...
HOROWITZ: That‘s not murder...
FILAN: ... you don‘t have to be punished because you‘re suffering...
HOROWITZ: She murdered no one...
HOROWITZ: She murdered no one...
FILAN: It‘s completely fallacious.
ABRAMS: Speaking of...
FILAN: That analysis is completely fallacious.
ABRAMS: Speaking of fallacious—speaking of recanting, this is what Danny Porter, the D.A., said about recanting.
(BEGIN VIDEO CLIP)
PORTER: Later recantation doesn‘t excuse you from the criminal behavior under Georgia law. That would be like you‘re stealing something and then putting it back. It doesn‘t help you to say, oh, I put it back.
(END VIDEO CLIP)
ABRAMS: B.J., you agree with that?
BERNSTEIN: Not 100 percent. I mean I do think in terms of technically, whether—you know when you put—when you take something, you‘ve committed a crime, but intent goes along with it and that‘s going to be important on the felony charge, because it‘s a much stronger intent element. There has to be a scheme or plan you know for the false statement.
BERNSTEIN: There was a great scheme to get out of town, but a scheme to you know defraud the police, I don‘t know about.
ABRAMS: B.J., were you known as kind of a softy prosecutor?
BERNSTEIN: You know what? No, I was called the most unreasonable of that unreasonable bunch.
BERNSTEIN: I‘m not sure what‘s happened. Yes actually when I was in that office, I was.
BERNSTEIN: I‘m a good advocate for whoever is my client. How‘s that?
ABRAMS: Yes. All right. Fair enough.
FILAN: But Dan...
ABRAMS: B.J. Bernstein...
FILAN: ... there was...
ABRAMS: Quickly, Susan, yes.
FILAN: There was a lot of scheming and planning. The detail that she went into when she told the police that story about the sexual assault...
FILAN: ... there was a lot of detail. That wasn‘t an after thought.
That wasn‘t a 911 (UNINTELLIGIBLE)...
FILAN: ... and she made it up right then and there...
ABRAMS: Right. Right. Right. No, look, and you know I think, you know, there‘s an argument to be made that maybe this whole thing was planned out.
All right. B.J. Bernstein, always great to have you on the program.
Thanks a lot. Appreciate it.
FILAN: Thank you.
ABRAMS: Susan and Daniel are going to stick around. Coming up, Michael Jackson‘s lawyers rest their case. Yes, they‘re done. Fiftieth and final witness painting a picture of an accuser who knows how to take advantage of adults. Prosecutors spent 10 weeks making the case, the defense just two and a half. Did they do enough?
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: I tell you, you know the worst part about testifying? I had to follow the chimp.
UNIDENTIFIED MALE: ... the witness chair was a mess. It was awful.
(END VIDEO CLIP)
ABRAMS: And Jay Leno may not be the only comedian that testified, but certainly has the best jokes about it. Instead of my “Closing Argument”, you get to hear from someone who‘s really funny.
Your e-mails email@example.com. Please include your name and where you‘re writing from. I respond at the end of the show.
ABRAMS: Your Honor, the defense rests. With those words, Michael Jackson‘s attorney ended the case in chief, without calling Michael Jackson to testify. Fifty witnesses, over 15 days, testified in Jackson‘s defense. Some suggested he‘s the victim in the case; others defended Jackson‘s practice of sharing his bed with boys. Still others, like the final defense witness, actor Chris Tucker, attacked the credibility of the accuser and his family.
NBC‘s Mike Taibbi in court once again from the beginning. So Mike, let me start first—before we get into the details of testimony today, overview the defense case. Based on what we expected, how would you compare what they presented in the defense case versus what we expected?
MIKE TAIBBI, NBC NEWS CORRESPONDENT: Not so much what we expected, it‘s what Tom Mesereau, the chief defense attorney, promised in his opening statement and we all, trial watchers, always do go back to the opening statement, and then do the simple math. And the simple math says that there were some promises, some key promises Tom Mesereau made that were not kept.
He said, for example, listing a number of celebrities, that this was a family, the accuser‘s family, who went and asked them for money. And as we saw with Jay Leno yesterday, Jay Leno testified that he was never asked for money or for anything. He did tell the police he thought they were out for money, but that‘s something different than actually getting testimony that they asked for money and they got it.
What we did find and what Mesereau was able to accomplish through his 50 witnesses was a very clear and specific picture, true or untrue, of a family who performed like scammers, like people who are out for the gold either subtly or not so subtly. For example, we had Chris Tucker...
ABRAMS: Yes, I was just going to say, Mike, that I think Chris Tucker...
ABRAMS: ... may have been the best witness in that regard, maybe that paralegal who was also powerful. But Chris Tucker basically delivered everything the defense needed.
TAIBBI: Sure. And he did it using buzzwords. Interesting use of language. I‘m a real fan of language, as you know, Dan, and I wrote down some of the words that he used. He used “possessed” to describe the mother of the accuser, not just that she was mentally unstable, in his words, but that she was possessed, chaotic. He talked about his girlfriend, former girlfriend getting tangled up with this family.
He talked about the accuser himself being cunning, smart and cunning quoted him as saying, the boy coming up to him and saying, listen, I want that. Let me have that. I‘m not feeling good, taking advantage of his illness again and again, until as Chris Tucker testified, he began to get suspicious, nervous, scared, his own self descriptions, came to believe that they were out for money.
In fact, he had sent them a lot of money, wired them money, and was prepared to give them a car and hauled all that back, eased out of it he said, asked his then-girlfriend to ease out of it, back away from this family, told Michael Jackson to do the same thing. So...
TAIBBI: ... if the jury latches on to those buzzwords, as I think a lot of people in the courtroom did, that‘s the picture...
TAIBBI: ... they‘re going to be left with.
ABRAMS: ... let me just read...
TAIBBI: Not that they all came and said—sure, go ahead...
ABRAMS: Let me just read the quotes from the stuff you were just talking about.
Chris Tucker, he was referring to the accuser in this case—this is not the mother. He was really smart and he was cunning, but at the time I always overlooked it. And his brother was definitely cunning. Remember, they are the two most important witnesses for the prosecution.
He was always saying stuff like Chris, let me have this. Let me have that. Come on, I‘m not feeling too good. Of course, referring to his cancer. And Tucker talked about the fact that he gave the family some money, and that they just kept asking for more and more in that regard.
Mike, the prosecution then immediately began its rebuttal case, meaning prosecutors get an opportunity to respond to the defense‘s case. Anything, any headlines out of that?
TAIBBI: Well, I think a couple of good things for the prosecution and some more that we can expect from them. For example, they had Jesus Salas come on, who was the house manager at Neverland, and he testified extensively to basically rebut some of the specific testimony about whether he had—ever had money stolen by the accuser‘s kid brother or by the accuser himself, whether there were some other things that happened. But more importantly, I think, this is my view of it, he gave testimony that could not be challenged and was not challenged, that Michael Jackson was drunk frequently, as much as four times a week. I always thought that booze stuff was important...
TAIBBI: ... and Mesereau didn‘t challenge it in any way, except to say, but didn‘t he always have his nanny with him, wasn‘t the nanny always around for his kids. And I‘ve got to say and I‘ve said this before, I think that when the jury, any juror who has experience with alcoholism, who thinks that alcohol is an issue in this case...
TAIBBI: ... even though being a drunk is not what he‘s charged with...
ABRAMS: Yes, that‘s a good point.
ABRAMS: That‘s a good point.
ABRAMS: And real quick, Mike...
ABRAMS: Mike, you still going to be walking your dog two weeks from yesterday back in—back at home?
TAIBBI: Well, I promised him I would and unlike Tom Mesereau, I keep my promises at the end of the day, so my dog expects that I‘ll be back walking him in two weeks.
ABRAMS: Yes. Yes. Well, I think you may have a lonely dog, but we‘ll see. I think this may go longer than that with the deliberations, et cetera. We shall see. Mike Taibbi, thanks a lot. Appreciate it.
Joining me now an all-star panel. Outside the Santa Maria courthouse MSNBC analyst, former prosecutor Susan Filan, criminal defense attorney Daniel Horowitz, attorney and “Inside Edition” senior correspondent Jim Moret, and the former Santa Barbara sheriff, Jim Thomas, who is also now an NBC News analyst.
All right. Jim Moret, you‘ve been sitting in court every day, I saw you there at the opening statements. Overview, defense case, it‘s done. Did they deliver?
JIM MORET, “INSIDE EDITION” SENIOR CORRESPONDENT: Yes and no. And you know, I think the case really went south from the beginning. When they brought in these two boys, Wade Robson and Brett Barnes, who had spent a lot of time with Michael Jackson, and then their moms and sisters. I found that very disturbing testimony because it really helped buttress the prosecution‘s case.
But after that, Mike Taibbi is right. They really focused in on attacking the credibility of the boy and attacking the credibility of his mom. And you know when Mike was talking about this being intoxicated, it was even more than that on this prosecution rebuttal. Because the witness, Jesus Salas, said that the accuser and his brother spent 90 percent of the nights between February and March of 2003, in Michael Jackson‘s room. So if he‘s intoxicated four out of seven nights...
MORET: ... then 50 percent of the time...
MORET: ... that he‘s with those kids, he‘s intoxicated.
MORET: I thought that was really big.
ABRAMS: Daniel, I think that‘s big, too. I mean you know look, he‘s not on trial for being boozed up, but that‘s not the question. The question is, whether jurors are going to say to themselves, if Michael Jackson is boozed up four out of seven nights in the week, well, you know what? Then maybe he was doing things that even he wouldn‘t approve of.
HOROWITZ: Dan, I agree. That really was snuck in by the prosecution. It didn‘t come in, in their case in chief. It didn‘t come in really in response to anything that the defense put out there. It just all of a sudden raised its head during what was supposed to be rebuttal to the defense case. And I think Tom Mesereau was caught unawares.
For one thing he never said, what do you mean by intoxicated. Two drinks, three drinks, drunk so he can‘t stand? We never got there and I think Tom was being careful because this came out of left field. Let‘s see how they deal with it when they come back in their rebuttal to the prosecution‘s rebuttal. They may deal with that a little bit.
ABRAMS: Maybe. I don‘t know. I‘ll be interested. But, look, Susan, you‘ve been out there for a couple of weeks now. You heard the end of the defense case, now you‘re hearing this rebuttal. Are you thinking, again, at the end, as we look at this case sort of in the macro picture, that things are—you would be worried if you were the prosecutor?
FILAN: I would be worried if I were the prosecutor because this is a credibility case. And what the prosecution had to prove is based on the testimony of the boy and the witness brother and the mother. Now that they‘ve been so thoroughly attacked by the defense‘s case, not just on cross-exam, and they were attacked on cross-exam, but they‘ve been now attacked through independent and separate witnesses.
I suppose the paralegal probably being the most devastating one and secondly the lawyer for the mother in the J.C. Penney lawsuit, who said in the middle of her deposition, all of a sudden, out of left field, she starts adding that she was fondled. And, that the mother let her kids take acting classes so she could coach them through their various testimonies and depositions. That just really laid a glove on the prosecution‘s case.
But here‘s the bottom line for me. This guy sleeps in bed by his own admission with little boys. And if the jury is going to have to excuse that behavior because they‘ve now entered his “never world” of an alternate reality, that is really kind of hard to buy into. I think that‘s where we‘re going to have a hung jury.
The prosecution may not have proved it, but even though it‘s not the defense‘s job to disprove it, they didn‘t do enough with raising reasonable doubt on the molestation. I think they nuked the conspiracy...
FILAN: ... but molestation just hangs in the balance...
ABRAMS: Jim look...
FILAN: ... and with the prior bad act evidence...
ABRAMS: Yes. All right...
FILAN: ... I think they‘re going to have a hard time letting him walk out the door...
ABRAMS: Jim, Tom Sneddon is an old friend of yours, and I know you haven‘t been speaking to him about the case, as it‘s been ongoing, but you know him and you know you‘ve worked with him for a long time and you‘ve watched this case pretty closely. You think he‘s really sitting there saying things just are going peachy keen?
JIM THOMAS, FORMER SANTA BARBARA COUNTY SHERIFF: Well, I think they believe it is in one aspect. I think the defense has been very effective in destroying the mother‘s credibility. But remember, Dan, the mother did not testify to the issue of the molestation. The boy did. And I think his credibility is still pretty good with this jury.
In fact, they‘re talking about showing a two and a half-hour film of his testimony to the law enforcement officers when they first did his first interview. That could be very, very powerful. I think that the issues of the molestation are still problematic for the Jackson team.
ABRAMS: And that‘s a real good point that Jim is bringing up, there‘s still a battle going on as to whether the prosecution will be able to show a videotape of the boy being questioned by the authorities to say, look, you think it was scripted? Well look at the way he was answering the questions back then.
All right. Let me take a quick break here. We‘ll talk about that. We‘re going to look back at all the celebrity witnesses, a lot of them didn‘t testify. Where did they go? Jackson‘s lawyers may have only taken two weeks, they fit in a lot of witnesses. And Jay Leno, not the only celebrity, certainly was the funniest. If you missed what he had to say on his show last night, we‘ve got it.
ABRAMS: Coming up, two and a half weeks and 50 witnesses later, Michael Jackson‘s lawyers rest their case. Take a look back, first the headlines.
(BEGIN VIDEO CLIP)
MICHAEL JACKSON, ACCUSED OF MOLESTATION: Peter Pan, to me, represents something that‘s very special in my heart. You know, he represents youth, childhood, never growing up, magic, flying. Everything, I think, that children and wonderment and magic, what it‘s all about. And to me, I just have never, ever grown out of loving that or thinking that it‘s very special.
UNIDENTIFIED MALE: You identify with him?
UNIDENTIFIED MALE: You don‘t want to grow up.
JACKSON: No, I am Peter Pan.
UNIDENTIFIED MALE: No you‘re not, you‘re Michael Jackson.
JACKSON: I‘m Peter Pan in my heart.
(END VIDEO CLIP)
ABRAMS: I can never get enough of that stuff. I could hear that tape again and again and again. Anyway—all right back to what happened today in court. The prosecution, now in its rebuttal case, meaning their final opportunity to respond to the defense‘s case. This whole thing is almost over. Prosecution wants to introduce a tape. You heard Jim Thomas talk about it a moment ago.
Mike Taibbi, exactly what is on this tape that the prosecution wants so badly to introduce to this jury?
TAIBBI: Well, this is the interview—I know there were a couple of interviews done with the accuser, his siblings, and his mother, after June 13 when the case was first reported by a psychiatrist to the Santa Barbara County Sheriff‘s Department. On this interview, the boy finally talks about, to law enforcement, talks about the specifics of what he‘s alleging Michael Jackson did.
And apparently it‘s a very emotional tape, the way it‘s been described to me, where it has to be kind of pulled out of him, where it doesn‘t sound at all like the kid is kind of crafting this as he goes along. It sounds quite genuine, sounds quite emotional. There may or may not be inconsistencies between what he says on that tape and what he testified to on the stand, particularly because of the charges, the date of the charges, the alleged violations, changed as well. So presumably the police after some investigation refined their understanding of what the boy alleged happened. But it is this tape that is extremely dramatic, apparently...
TAIBBI: ... and will have a powerful effect. So much so, that the defense says if they play that tape, we‘ve got to bring the boy back on the stand, because we have to have the right to confront the witness in this videotape, it doesn‘t allow us to do that...
TAIBBI: ... so the prospect of bringing the accuser back on is there.
ABRAMS: Right. And, Susan, this would be very unusual, wouldn‘t it?
To allow the prosecutors to play this tape to basically bolster...
ABRAMS: ... the testimony of the accuser?
FILAN: No, I don‘t think so, Dan. Because when they put their case in chief in, they had the accuser on the witness stand, he was subject to cross-exam, and the jurors could observe his demeanor and assess his credibility. Now through the defense‘s case, he‘s been so thoroughly attacked and impeached with the suggestion that his mom took him to acting classes to coach him, script him.
So now if you see him—best evidence, see him in the videotape, see for yourself. Is it coached? Is it scripted? Is he acting or do you now find it believable?
FILAN: I don‘t think it would beyond appeal...
ABRAMS: But wait...
FILAN: ... for this judge to allow it at all.
ABRAMS: But Daniel, why do you get two bites at it? I mean that bottom line is the boy‘s testimony is supposed to speak for itself.
HOROWITZ: Yes, you don‘t get two bites, Dan. And in fact, under U.S. Supreme Court law, if that tape does get played, and it shouldn‘t, the kid has to be on the witness stand, to be cross-examined by the defense about it. We do not allow any more in the United States, since a recent Supreme Court decision, testimonial evidence, something the police extracted from somebody, for the purpose of preserving evidence, to be played without the defense getting to say, hey, let me challenge you on this or on that...
ABRAMS: ... here‘s the problem...
HOROWITZ: Legally they should have put it in.
ABRAMS: It sounds to me like prosecutors are disappointed, Jim Moret, that the boy didn‘t cry on the witness stand. And you know what, it sounds like what they‘re saying is well he was really a lot more convincing the first time he told the authorities. But as a practical matter, you know again, it could have been scripted before he spoke to the authorities.
MORET: And you know what is interesting about that, Dan, is when this boy was on the stand, you have a young boy who survived cancer, he should be an extremely sympathetic witness and yet, after he‘s done with cross-examination, he really wasn‘t all that sympathetic. There have been other witnesses, frankly, that drew much more sympathy from those of us who are watching this case than this young accuser. And, frankly, that‘s not good if you are on the prosecution.
ABRAMS: This is a huge issue, Jim Thomas, for the prosecution, right?
I mean this is it.
THOMAS: Well, I think it‘s the thing they have to do. Because I think like we said before, that the mother has been fairly well destroyed. It‘s important for the prosecution to build up this young accuser because if they‘re going to get a conviction, it‘s going to be on his testimony. And I don‘t think the defense would want to call him back. Because if they do, then the prosecution gets to do the cross. So it will be the prosecution‘s questions that would be the last questions of this boy before it goes to the jury.
ABRAMS: Yes, but I still think that they would—I mean you know, that they could get a chance for re-cross and et cetera. I don‘t know. I think if they play this tape...
FILAN: But Dan...
ABRAMS: Yes, go ahead. Very quickly Susan...
UNIDENTIFIED MALE: The prosecution...
FILAN: If this boy gets back on the witness stand, it gives the prosecution another chance to make him into what they need him to be. I think the defense would be crazy. Right now, he‘s not believable...
ABRAMS: Yes. Yes. Yes...
FILAN: If they put him back on the witness stand...
ABRAMS: No, that‘s a good point...
FILAN: ... he could be rehabilitated...
ABRAMS: That‘s a good point...
FILAN: ... now the jury gets a second chance to believe him. It‘s not a second bite at the apple. This is pure rebuttal.
ABRAMS: Yes, that‘s a good—all right, well we‘ll see. Everyone is going to stick around. Coming up, I‘m going to ask everyone to take a little bit more of a macro view of this case and tell me, now that the defense case is over, what do you think is going to happen here? I‘ll tell you. I‘ve said it before, I‘ll say it again, what I think is going to end up being the result here.
And Jay Leno recounts testifying at the trial in his own words. My “Closing Argument” tonight is his closing argument from last night.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Well, after what, 12 weeks of trial, Michael Jackson‘s attorneys, they have finally admitted that Michael slept with children but it was about love, not sex, which just goes to prove that line works for all guys.
(END VIDEO CLIP)
ABRAMS: Your e-mails firstname.lastname@example.org. Please include your name and where you‘re writing from. I respond at the end of the show.
ABRAMS: The defense rests in the Michael Jackson case. The case is going to be heading to the jury next week, so what‘s going to happen? My guests‘ predictions coming up.
(BEGIN VIDEO CLIP)
JACKSON: I love my community and I have great faith in our justice system. Please keep an open mind and let me have my day in court. I deserve a fair trial like every other American citizen. I will be acquitted and vindicated, when the truth is told.
(END VIDEO CLIP)
ABRAMS: All right, so that was Michael Jackson‘s prediction on January the 30th, but now the case is in. There‘s still a few more witnesses left. But the defense rested, prosecution is doing a couple more witnesses here. Maybe the defense will call a couple more. But bottom line is this case is going to the jury next week. And so the question is, what is going to happen.
I‘ll give you my prediction in a moment. But Susan Filan, there are three categories of charges here. There is the conspiracy charge. There is the molestation charges, and there is the alcohol—serving alcohol to a minor with the intent to molest charges. Your prediction on what‘s going to happen.
FILAN: Mistrial or hung jury on the molestation. Not guilty on the alcohol. Not guilty on the conspiracy.
ABRAMS: Daniel Horowitz?
HOROWITZ: I say not guilty on everything, Dan, although I agree with Susan, if there is a hang, it will be on the molestation charges.
ABRAMS: Jim Moret, I don‘t know if you want to—do you want to predict, Jim? If not, I have a separate question for you.
MORET: Well, I‘ve never gone out on a limb, but you bring this out in me. I don‘t know. You know, after listening to everything, my gut feeling is that, you could see a conviction on one of the molestation counts and after today, possibly one of the alcohol counts...
MORET: And then as to the other charges, the other eight, either hung or not guilty. Certainly not on the conspiracy, I don‘t think.
ABRAMS: Jim Thomas, what do you think?
THOMAS: I think guilty on two of the molestation charges. The charges that are by the accuser himself. Not the ones that were seen by his brother. Not guilty on the conspiracy.
ABRAMS: And how about the alcohol charges?
THOMAS: Well I think they‘ll do the alcohol, but you know that‘s difficult. Because you have to tie the alcohol specifically to the counts and I‘m not sure how the jury is going to work with that.
ABRAMS: Mike, what do you think? Do you want to say?
TAIBBI: As difficult as it is for me to agree with Susan, I tend to agree with Susan. (UNINTELLIGIBLE) like to predict these things, but I‘ve watched this every day and I think it‘s going to be a not guilty on the conspiracy and the alcohol counts. But I think that there are a couple of jurors, at least, who are not going to be able to send this guy home, because they believe he is a child molester, however weak they might think the case is.
ABRAMS: And I...
TAIBBI: ... it could be a hung jury.
ABRAMS: And I think that if there is a conviction on any of the charges it will be the alcohol charges. It will be one, maybe two of the alcohol charges. Why? Because the jurors might want to compromise. Meaning, if these jurors are going in there and they‘re going at it, and basically some of them are saying I‘m not convinced, and others are saying, wait a sec, come on, there‘s a lot of evidence there. I think the alcohol charge could be the compromise verdict that we see in this case, which says we‘re not 100 percent sure about this accuser.
We‘re not 100 percent sure about his family. We know the conspiracy charge is nothing. They could find him not guilty on the molestation, not guilty on the conspiracy, but say, you know what, there is evidence that there was alcohol at that house. I think that is—I will be surprised, very surprised, if there is a conviction on any of the molestation charges or the conspiracy charge. But, you know, let‘s see. The closing arguments, I remember in the Michael Skakel case, the Kennedy nephew, the prosecutor‘s closing argument in that case made the case.
The end of the case, everyone was saying, wow, look at the way he put everything together. Who knows? Maybe prosecutors will do it. If they do, ladies and gentlemen, I promise I will tell you that I am changing my view of the case. Because I will be out there, listening to it.
UNIDENTIFIED MALE: Dan...
ABRAMS: Very quickly, who wanted to make that final thought?
THOMAS: I did. This is Jim.
THOMAS: Ron Zonen will be doing the close. I think he‘s probably the most organized person in both sides and I think that he has a potential to make this case...
ABRAMS: All right.
THOMAS: ... very problematic for the Jackson team.
ABRAMS: All right. We shall see if he does that. Susan Filan, Daniel Horowitz, Jim Moret, Jim Thomas, Mike Taibbi, getting predictions from everybody where the usual non-predictors are even coming forward...
UNIDENTIFIED MALE: That‘s right.
ABRAMS: ... making predictions.
UNIDENTIFIED MALE: We‘re at the end of the line.
ABRAMS: Coming up, an insider‘s look at what it‘s like to testify at the Michael Jackson case. Jay Leno recounts his experience. He‘s doing my “Closing Argument” tonight.
ABRAMS: My “Closing Argument”—instead of a “Closing Argument” tonight, I‘ve decided to seed my soapbox to someone who was not only an actual witness in the Michael Jackson trial, but also someone who‘s a lot funnier than I am.
(BEGIN VIDEO CLIP)
JAY LENO, HOST, “THE TONIGHT SHOW”: Well I just got back from testifying. Man, I don‘t want to say it was hot up there in Santa Maria, but Michael Jackson was asking boys what they‘d do for a Klondike bar. That‘s how...
LENO: I tell you, you know it was really odd, walking into that courtroom today. Because I realized it was the first time I had seen Michael since I was 12...
LENO: You get those weird feelings.
LENO: You know—but you know, I‘ve got to admit I was a little nervous before I testified. Once I got to the courtroom, I wasn‘t uncomfortable at all. They really made me feel at home. Show the security camera footage of me arriving in court today.
UNIDENTIFIED MALE: Next witness.
LENO: I tell you, you know the worst part about testifying? I had to follow the chimp. Oh...
LENO: ... the witness chair was a mess, it was awful.
LENO: ... terrible, awful thing. Actually, there was one kind of embarrassing moment. When I took the stand, they asked me to point to the defendant and I pointed out Latoya. Yes...
LENO: ... nervous. You know, it was interesting, I had my little cell phone camcorder with me while I was in the witness holding area.
UNIDENTIFIED MALE: Oh yes.
LENO: And I got pictures of all the other witnesses. Show that picture we‘ve got of the other witnesses. There they are there...
LENO: You know what‘s amazing about being in the same room with Michael Jackson? In person he almost looks lifelike. You know...
LENO: ... it‘s amazing. It‘s amazing.
LENO: Well, there was a lot of talk about Michael Jackson, if he is acquitted, he wants to leave the country as soon as the trial is over. That‘s what they said. One report says he wants to go to Africa and disappear. He wants to disappear in Africa. Africa? He has a better chance of disappearing in Sweden...
LENO: Is that possible?
LENO: Well, (UNINTELLIGIBLE) what else happened today? Well after, what, 12 weeks of trial, Michael Jackson‘s attorneys, they have finally admitted that Michael slept with children but it was about love, not sex, which just goes to prove that line works for all guys.
LENO: All guys use that line.
LENO: Michael‘s fans are out front, they wait for you when you come out. They were very nice to me. I was so touched by what they did when I left the courthouse. Show the footage of me leaving the courthouse today. I‘m coming out. I get in the car, now I‘m just ready to go. I thought this was a lovely gesture.
(END VIDEO CLIP)
ABRAMS: Jay Leno, funny stuff.
Coming up, a word of advice to criminals out there. If you are trying not to get arrested, you might want to stay out of police stations where your picture is up on a most wanted sign. Our “OH PLEAs!” is coming up.
ABRAMS: I‘ve had my say, now it‘s time for “Your Rebuttal”. As the defense wraps up its case in the Michael Jackson trial, many still writing about children sleeping in the same bed with Jackson.
Gordon Klopfenstein in Fort Wayne, Indiana, “Sharing beds was a common practice until I would guess the last 30 years. I don‘t find it particularly weird that kids would want to share a bed with a person of Michael Jackson‘s popularity among their age group.”
First of all Gordon, I don‘t know that he‘s that popular among young kids, but it‘s really that a 45-year-old man regularly sleeps with children he hardly knows. It‘s not that weird that they may want to sleep there.
And Jay Leno as a witness. I said Leno didn‘t deliver for the defense in the way Jackson attorney Tom Mesereau said he would in his opening statements, but - quote—“the logic” of J.T. Toms disagrees.
“Dan, use logic. Leno‘s testimony is very helpful to the defense. How many times did you get a call from someone that led you to alert the authorities?”
Well actually J.T., the authorities contacted him. Not the other way around.
Also last night, Medicaid paying for Viagra and supplying the erectile dysfunction drug to convicted sex offenders. Many of you outraged and have the same sentiment as Kenna Nauenburg in Riverside, California.
Quote—“The ability to have an erection is not an absolute necessity, is it? I really don‘t think so. As a taxpayer, I don‘t feel that I should have to pay for anybody‘s erection, let alone a sex offender.”
One of my guests, convicted sex offender Jake Goldenflame, said as long as sex offenders have paid their debt to society, they‘re suppose to have the same rights as other Americans. I disagreed.
From Tallahassee, Nick Dorphley, “Jake Goldenflame completely flip-flopped on his views about sex offenders. You did a good job calling him out on it.”
And finally last night I spoke to actress Janel Moloney about her role as Amber Frey in tonight‘s made-for-TV movie “Amber Frey: Witness for the Prosecution.”
Alex Gomes in Durham, North Carolina, “You should stick to talking with other prosecutors, defense attorneys and celebrity experts because in your interview with Janel Moloney, you looked like the captain of the chess team flirting with the homecoming queen at the punch bowl on prom night.”
So true, I am such a dork at heart. I admit it.
Your e-mails email@example.com. We go through them at the end of the show.
“OH PLEAs!”—you‘d think a wanted man would do everything he could to avoid the police but then again, the “OH PLEAs!” so obviously not. Twenty-year-old robbery suspect Chucky Hernandez (ph) walked into a police station inquiring about his comrade, apparently forgetting that he had something to hide. His face, that is.
Police at the Brooklyn 90th Precinct didn‘t have look to hard for the wanted robbery suspect. Hernandez (ph) was standing next to his own wanted poster. Hernandez (ph) and his cohort Quequan “Guns” Gavin (ph) had held up two cabs, but the second cab installed with a camera captured their mugs. Gavin (ph) was captured when cops raided an apartment. Surprise, with the nickname of “Guns,” they found drugs and guns, as well as the wallets of the two cab drivers that were held up.
Anyway, got to go. See you tomorrow.
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