Politics & Policy

What’s Glove Got to Do With It?

He's bad, but Michael Jackson beat it.

I haven’t paid much attention to the Michael Jackson case. He has become such a freak show in the last 15 years or so that people tend to forget what an enormous talent he was in the 80s, but I haven’t paid him much mind in a very long time. The occasion of his not-guilty verdict makes three observations apt.

First, as we’ve now seen with Jackson, O. J., Robert Blake, Kobe Bryant, and some others I’m probably forgetting, it can be very difficult for local prosecutors’ offices to convict celebrities. The cult of celebrity is surely a factor in this, but it is not the most important factor–not by a long shot. The salient thing is resources.

The local DA’s office is where the rubber meets the road of everyday law enforcement. It is equipped to investigate and prosecute run of the mill crime, over 90 percent of which is settled by lesser charges in plea bargaining because the system cannot afford trials–DA staffs are small, as are local police departments, and if major resources have to be thrown into investigating any one case, other things (like normal policing) feel the pinch, which is understandably unacceptable to the community.

Celebrities, unlike other defendants, can match the prosecutor dollar-for-dollar and then some. They bring in big-time legal talent and first-rate private investigators (who were often top-flight federal or state cops in their earlier lives). It is a big advantage and it is not something that local law enforcement is used to dealing with. I was very lucky to work in the Justice Department, with the FBI and other federal agencies. It wasn’t that we were better–a lot of these state officials are old pros and top-shelf at trial work. It’s that DOJ would never be outspent or out-resourced. That’s why the feds can take on the Enrons, the mafia dons and the cartel kinpins awash in drug money.

Second is the nature of trials in general. When a case is very serious, juries will accept some level of unsavoriness about the prosecution’s witnesses–as long as the prosecutor doesn’t pretend that his witnesses, who are often flawed people and who may be testifying in pursuit of leniency or money, have suddenly transformed into Mother Teresa. But to convict a celebrity you’ve got to have two things: (a) the evidence needs to be strong, because the defense team is going to be good and is going to expose every weakness in it; and (b) the prosecution needs to avoid that tipping point where the unsavoriness of its witnesses overtakes the seriousness of the charge.

This is especially true in a case like Jackson’s. O. J. should have been convicted because no matter how flighty some of the witnesses seemed, at issue was a brutal murder as to which there was no doubt about whether it really happened, and the forensic evidence was strong. In Jackson’s case, to the contrary, (a) there was doubt about whether child abuse had actually happened; (b) although child abuse is a very serious matter, its seriousness here was somewhat mitigated by the bizarre behavior of parents who willingly made their children available to Jackson (whether he actually abused them or not); and (c) because there was no forensic proof, the case rose or fell on the testimony of the witnesses–who, from my limited observation, appeared to exude weirdness.

Finally, there is an interesting aspect of this particular trial, and that is what we call “other crimes” proof. The law says a person cannot be convicted because of his propensity to do evil: You can’t find someone guilty just because he seems in general to be a bad guy–you need to have proof of the charged crime. But the law often allows evidence of past, uncharged crimes to be admitted at the trial of the charged crime to prove things other than propensity–such as motive, opportunity, identity, common scheme or plan, etc. If, for example, you are charged with a bank robbery during which it’s alleged the robber wore a blue mask, the law allows the government to prove that on three other occasions you robbed banks while wearing a blue mask. The idea is that this proof is relevant to a contested issue, namely, identity (the blue mask); i.e., the jury is not being asked to convict you because you have a propensity to commit crimes.

Defense lawyers obviously hate other crimes’ proof. Human nature tells them that you can’t take propensity out of the equation. That’s probably right most of the time, but I wonder. Sometimes, if the proof of other crimes is too elaborate, it can make the proof of the actually charged crime seem comparatively weak. It can also make it look like the prosecution is trying to get the jury to do exactly what the jury is not supposed to do: convict based on the sense that the defendant is a bad guy.

My sense is that this may have happened here. The state was permitted to prove other instances of abuse after what was apparently a not very compelling presentation on the charged abuse. It looks like that probably backfired, serving to underscore how weak the evidence was on the instance of abuse that was the core of the case.

Anyway, let’s just be thankful it’s over and we can get back to the truly important issues–like Brad, Jen, Angelina …

Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.


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