Will Jackson's Past Haunt His Acquittal Chances?

March 28, 2005 — -- A judge's ruling on whether evidence of previous similar allegations against Michael Jackson will be admitted into his child molestation trial could be the turning point of the case.

Santa Barbara County, Calif., Superior Court Judge Rodney S. Melville will hear arguments today on whether prosecutors can present testimony about prior alleged similar wrongdoing by "The King of Pop" -- including the 1993 scandal where a 12-year-old accused him of molestation -- in his current trial. Jackson is on trial for allegedly molesting a now-15-year-old boy who spent time at his Neverland ranch and appeared with him in the 2003 British documentary "Living With Michael Jackson." He has pleaded not guilty to 10 charges that include felony conspiracy with 28 overt acts involving child abduction, false imprisonment and extortion.

Jackson has never been criminally charged for the 1993 accusations or any similar allegations. Santa Barbara prosecutors decided not to pursue the 1993 case after they said the alleged victim refused to testify. Jackson settled a civil suit filed by the boy's family for a reported $20 million but has always denied any wrongdoing in that case or ever harming children.

However, the scandal and any past allegations Jackson has weathered may come back to haunt him. A change in California law in 1995 regarding sex crime cases may allow prosecutors to present testimony on alleged bad acts or propensity evidence in Jackson's trial. ABC News has reported that the prosecution wants to present testimony of at least seven others -- including the 1993 accuser -- who spent time with Jackson when they were young.

Some court observers say that if Melville admits the evidence, it will be a major win for the prosecution, no matter how inconsistent or questionable his accuser's testimony in his current trial has appeared.

California-based attorney Steve Cron believes the judge will let the evidence in. If it does come in, and if the prosecution can present a compelling case that others have been molested, then Cron believes Jackson may well be convicted.

"Jackson's defense will be hard-pressed to overcome that," Cron said. "It will be an uphill battle for them."

In addition to the 1993 accuser, prosecutors, ABC News has reported, want jurors to hear about: Child actor Macaulay Culkin, who has repeatedly denied anything sexual happened between him and Jackson; a son of a former Neverland employee whom Jackson's defense admits received a multi-million dollar settlement in the mid-1990s; a friend of the Jackson family; a boy -- now a young adult -- who wrote a fan letter to Jackson in the early 1990s and became friends with him; a boy who met Jackson during the filming of a commercial; and an Australian who now works in Hollywood.

However, even if Melville were to allow the testimony, it is uncertain who would be willing to testify against Jackson and what they would say. Several of those on the prosecution list have publicly insisted that nothing sexual or untoward happened between them and Jackson. The defense has previously told ABC News that at least three of the boys would be willing to testify in defense of Jackson.

Jackson's 1993 accuser, now in his 20s, has told prosecutors he does not want to testify, sources have told ABC News. However, his 1993 sworn affidavit, his civil records and his mother have been subpoenaed. The mother is on the prosecution witness list, sources told ABC News. In addition, the boy who received a settlement from Jackson in the mid-1990s and his mother are on the prosecution witness list.

Pattern of Bad Behavior Versus Due Process

The prosecution has suggested that Jackson won the trust of his younger accuser, who is a cancer survivor and was 13 at the time of the alleged molestation, by showering him with lavish gifts and accommodations. The singer then, prosecutors allege, took advantage of him after showing him adult magazines and Web sites and serving him wine, which he referred to as "Jesus juice," in soda cans.

Prosecutors believe Jackson has used similar tactics on other people and that his alleged actions with his accuser in his molestation trial illustrate a pattern of bad behavior.

"The purpose of evidence like this is to show the person's modus operandi -- that this is a bad person who has behaved in a certain way with others in past and that he probably behaved badly in the crime alleged in the prosecution's case in chief," said James Cohen, a professor at Fordham University School of Law in New York. "But whether it is let in depends on the context of the evidence."

Admission of propensity evidence has long been a source of legal debate. It has generally been disallowed in non-sex crime cases, although laws vary from state-to-state regarding the admissibility of propensity evidence in sex crime trials. In 1994, President Clinton signed into law the Violent Crime Control and Law Enforcement Act, which authorized the admission of a defendant's prior sexual offense evidence in sexual assault and child molestation cases -- but only when relevant. The prosecution must tell the defense its intent to offer prior sexual misconduct evidence before trial.

Law enforcement officials have argued that propensity evidence allows them to identify and protect the public from sexual predators, helps establish motives in sex cases and may empower victims who are hesitant to file reports to police. But some legal experts have argued that propensity evidence unfairly sways a jury against a defendant.

Testimony about previous convictions for similar crimes or previous similar allegations, some experts say, may cause jurors to convict someone based on their past and not on the evidence directly related to their trial. Propensity evidence may empower jurors to seek revenge for the past and cloud their judgment over whether the defendant is guilty of the charges he faces in the present.

"Some jurors may hear the evidence about prior bad acts and say, 'Well, we've heard about all these things and he's been out on the street. We've got to take care of business with this guy,' " said Ronald Carlson, a professor at the University of Georgia School of Law. "They're going to decide to convict him based on past similar [alleged] acts and not evidence in the current charges."

Bolstering a Weak Case?

In addition, some argue that prosecutors can use propensity evidence to buffer a case that lacks strong evidence.

Jackson's defense has argued that the alleged victim and his family made up the allegations against him to force him into making a monetary settlement. The family, Jackson's defense argues, has a history of making false allegations to get money.

In Jackson's trial, the alleged victim and his siblings testified and some courtroom observers believed their testimony was not as strong as the prosecution had hoped. The alleged victim's sister testified that she saw Jackson her and her brothers alcohol and held her and her family virtual hostages of Neverland after the "Living With Michael Jackson" aired. But the defense cast doubt on her credibility when it showed a video made after the British documentary -- and the alleged abuse -- that shows members of the family praising Jackson. The sister told the court the praise was coerced.

The brother of the accuser-- the only eyewitness to alleged molestation -- told jurors he saw Jackson fondle his brother. But the cross-examination by Jackson lead attorney Thomas Mesereau Jr., showed several inconsistencies in the various accounts of the alleged incident the boy told investigators. The accuser's brother also admitted that he lied in a deposition for a 2001 civil lawsuit the family filed against J.C. Penney that ended in a $137,500 out-of-court settlement.

The accuser told jurors that Jackson masturbated him on two occasions. However, he also admitted that he told a school official after "Living With Michael Jackson" aired that "nothing happened" between him and the singer.

The alleged victim's mother -- whom the defense has suggested coached her children into making up the charges against Jackson -- has not taken the stand yet. But Jackson's defense is expected to aggressively attempt to undermine her credibility. Santa Barbara County prosecutors may need testimony about the 1993 scandal and other alleged Jackson allegations to offset the shortcomings of their key witnesses, court observers say.

"There are some that say the prosecution will use the previous [alleged] incidents to bolster an otherwise weak case," said Cron. "The defense will argue that it's not fair and it shouldn't be allowed in."

Testimony about prior similar allegations may nullify the progress Jackson's defense may have made toward undermining the credibility of the alleged victim and his siblings.

"If Jackson loses this hearing, it will matter little to jurors that the accuser messed up some dates on some magazines he and Jackson looked at," Carlson said. "Jurors will overlook the mistakes in details made by the accuser and his siblings and figure that if Jackson did it at least once or twice, he most likely did it once again in the crime for which he is being tried."

Prognosis of a Compromise Ruling

If Melville rules that prior allegations against Jackson can be admitted, Cron believes Mesereau will try to undermine the testimony the same way he cast doubt on the credibility of the alleged victim and his siblings. He may argue that the people making the allegations are carrying a grudge or are motivated by monetary settlements. Jackson has always denied any wrongdoing, and his current lawyers have said he received bad legal advice when he decided to negotiate past settlements.

Melville has explained that he wanted to be careful in his ruling on the admission of testimony about Jackson's alleged prior bad acts. Some speculate that he opted not to make a ruling before the trial because he wanted to evaluate the strength of the prosecution's case. The judge may base his decision on the propensity evidence's relevance to case against Jackson and perhaps the credibility of the alleged victim.

"He will have to strike a difficult balance," said Cohen. "He will base his overall decision on the context in which the propensity evidence is relevant to the case in chief. With the alleged victim, he may see his testimony and see the prosecution's evidence and feel that they have enough and not let the evidence in. Or he may feel they don't have enough and not let it in. Or he may strike a compromise and let in the '93 evidence and not others. Judges reach compromises all the time."