Thursday, June 23, 2005

Did Prosecutorial Hubris Lose the Jackson Case?

I've been reflecting on how it was that the prosecution managed to lose a molestation case where some members of the jury said they believed that Jackson had probably molested in the past, but they couldn't prove it in this instance. Also, how they lost a case where the whole world looked at the defendant as a weirdo molester, and yet they couldn't get a conviction. For any regular practitioner in criminal law, both of these scenarios seem unbelievable, either one would almost automatically result in a conviction. Clearly, race had nothing to do with it, and celebrity cannot explain all, either. Unequal resources probably didn't do it.

What did do it?

I have a few thoughts on what the prosecution did in this case, and what the biggest mistake prosecutors tend to make that allow defense attorneys to win more cases than they probably should. I don't think that these are secrets, and I can't imagine that any prosecutor reading this post who otherwise disagrees with this notion is going to change based on my post, and that any prosecutor who agrees with my basic ideas will be hearing anything new based on what I'm saying.

I think that a prosecution that is tight and focused is the best kind of a prosecution. If you have 15 potential charges against someone, but 10 of them are weak, charging only the remaining 5 would be the best course of action. Obviously, this leaves the defense open to questioning to the jury "why haven't they charged all of this other stuff if it's there," but this may not even make it into the jury's mind. In the Jackson case, the basic charge that was going on here was the alleged molestation of the kid by Jackson. These 3 counts alone would have subjected Jackson to 24 years in state prison (maybe one of them was an attempt, and would have only subjected him to 20 years instead). Why would they bother to go after these idiotic conspiracy charges, or the allegations of giving him drinks, when they had the basic charges that they could file that would give him the most amount of time. By not thinking strategically - give up the extra few years and get him on the major charge that can keep him in prison for double digit time - the DA weakened their case with less provable charges.

Why would the DA do this? Part of the reason has to be the obvious vendetta that Sneddon had against Jackson based on Jackson buying his way out of the previous case a decade earlier. Sneddon obviously had it in for Jackson since then, something that Jackson probably exacerbated by writing a song mocking or criticizing Sneddon. The other reasons I can only make a guesstimate for: Sneddon wanted to throw the kitchen sink at Jackson to bolster the case (I think it usually undermines it), Sneddon wanted look extra tough in the public eye, for the international audience, Sneddon wanted to prejudice the potential jury pool and public opinion against Jackson, or most likely, Sneddon believed everything the family said to him hook line and sinker. Another probability is that once filed, Sneddon felt he couldn't dismiss any of the charges against Jackson without looking really weak when he began to find out the some of the allegations against the kid's mother. Again, much of this is his fault, by pursuing the case in the grand jury instead of through a preliminary hearing, he sped the case up, and he prevented the defense from having a free shot at his witnesses, but he also gave up a great opportunity to see what the defense was thinking based on the way that they fought the prelim. He could've listened to the cross examination of the mother that would've taken place, realized that she was damaged goods, and quietly (as quietly as possible, that is) gotten rid of those charges.

What would've been the result of this, had he proceeded only on the molestation? To begin with, Sneddon could've gone to trial with just a couple of witnesses - just the kid, for instance, and the cops who interviewed him, as well as that supposedly damaging video of him reporting the crime. What would the defense do then? Without the conspiracy charge, the mother and family would probably not be relevant witnesses. Even if they were, the defense would have to put them up in order to elicit damaging information about what grifters they were. But, this is a different beast entirely than trashing a prosecution witness. The defense would be calling a generally bad witness to get a few kernels of good information out. They would not be able to lead the witness until the judge made a finding that they were being uncooperative, perhaps not at all (didn't some commentators say that Mesereau's cross was some of the most devastating cross they had ever seen?). Imagine if the mother was the defense's witness, and the prosecution was able to lead her through all of the stuff they wanted her to say? They could only bring out the few good things, since they didn't need to rely on her for any of the conspiracy charges, so they could've discarded all of that wacky scenario that she brought up about being abducted and held prisoner - something no juror appeared to ever seriously consider.

I could only imagine what a 10 witness, 5 day case would've looked like here. The DA calls the kid, his brother perhaps, and just a couple of the witnesses to prior bad acts. The DA brings out how he bought his way out of other case (or not, perhaps this raised the specter too much of a shakedown in this case). Call a couple of cops about his general wackiness and things that he said about being roughed up by the police, and how the wits statements to the jury were similar to what they said to the police, and then rest.

The problem is, especially in high profile cases, DAs tend to fear undertrying their cases. One of the most devastating DAs that I know of is one who has done more jury trials than any DA in California, over 600. His cases are short, to the point, and leave out all of the fluff. He'll dismiss all weak or tough to prove charges before trial, and focus on the meat of the case. He also is a phenomenal trial lawyer and gives a great closing argument. He thinks creatively and strategically, not only about what he can prove, but what the result will be if he puts up too much evidence.

I have found that the most creative and best thinkers are defense lawyers. In general I believe this because I think that the defense side attracts people who are more creative, who are freer thinkers, who are less authoritarian and don't think of things in a top-down manner as is more common in law enforcement, military, or other stricter and more hierarchical organizations. Defense lawyers tend to be more individualistic, contrarian and non-conformist, so they don't get caught as easily thinking inside the box. These are visceral feelings on my part, not well formed or documented, but consistent with what I have seen over my years of practice. The best DAs are the ones who are able to think outside the box well, who anticipate several moves away, and who don't get trapped into believing their own case too much. More than anything, though, defense lawyers are used to making mountain out of a molehill, since that is what we so frequently are given to work with. DAs usually have the deck stacked so much in their favor (at least here in California), that they are rarely forced to work in the manner that defense lawyers are.

I think that Sneddon made a large mistake in being too believing in the family, especially the mother. If he didn't believe her, why would he proceed on the counts that were predicated on her testimony, and which required her to even hit the stand. If he did believe her, it probably owes more to the hubris consistent with so many California DAs who are used to winning just about all of their cases, and who work with a missionary zeal and belief in the justness of their cause, regardless of the glaring weaknesses that shout out at them. Failure to notice these weaknesses and deal with the case accordingly may very well have caused him to lose this case.


Anonymous said...

With all respect, I think you're overanalyzing this. Sure, the State's case could have been tighter. However, as a former PD, I can tell you that Joe Schmoe would almost certainly have gotten nailed to the wall on this sort of case. It's celebrity and the high profile nature of the case that makes the jury give meaning to the burden of proof.

Anonymous said...

I'm not really knowledgable about law, but I would guess that prosocuters don't see many high profile cases in their lifetime and aren't used to the money-is-no-object defense.

I would guess that this sort of thing takes some getting used to.

123txpublicdefender123 said...

PD Dude, I think you are exactly right. If the DA had just gone with a straight-up child molestation case, I think he stood a much better chance of winning. But when he threw in the conspiracy count, he had to call the mom, and he opened the door to all the hinky stuff going on in the accuser's family. For the average guy, I think the "throw a bunch of dirt against the wall, and see what sticks" approach often works. But when you are going to be battling a defense team with almost as many resources as the prosecutor's office, that strategy can clearly backfire. And it did. Big time.

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