Prior Allegations May Help Jackson Defense

March 29, 2005 — -- The judge's decision to allow jurors in Michael Jackson's child molestation trial to hear about prior similar allegations against "The King of Pop" may not be as devastating to the defense as some experts believe.

On Monday, Santa Barbara County, Calif., Superior Court Judge Rodney S. Melville ruled that prosecutors in Jackson's molestation trial can present testimony about allegations that the singer molested or behaved inappropriately with five other boys, including former child star Macaulay Culkin and two youngsters who reached multimillion-dollar settlements with the singer in the 1990s.

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." The entertainer has pleaded not guilty to 10 charges that include felony conspiracy with 28 overt acts involving child abduction, false imprisonment and extortion.

The judge's ruling could be devastating for Jackson, who has never been criminally charged for the other allegations and has denied any wrongdoing. Melville's decision means Jackson's attorneys must now defend him against allegations that he behaved inappropriately with five other boys, in addition to the alleged victim in his trial.

However, some court observers believe the testimony about the prior allegations could backfire for the prosecution. In his failed bid to get the testimony excluded from trial, lead defense attorney Thomas Mesereau Jr. argued that some of the prosecution witnesses who want to testify about the allegations are disgruntled former Neverland employees who have a grudge against Jackson or have unsuccessfully tried to sue him.

Mesereau can be expected to attack the credibility of these witnesses, arguing that Jackson has always denied wrongdoing, was never charged in connection with the prior allegations and that money motives have fueled the prior allegations. Some witnesses, the defense has argued, have sold their stories to supermarket newspaper tabloids.

"I can see Mesereau arguing that the previous cases were about the money, that there was a money motive," said California-based attorney Steve Cron. "I can see him arguing that, 'Well, if something bad happened, why didn't you report it to police?'"

Absence of Direct Testimony -- or Support -- From Some Alleged Victims

In addition, three of the boys mentioned in the allegations -- including Culkin -- have publicly insisted that their friendships with Jackson involved nothing sexual or improper. Only one Jackson accuser -- the son of a former Neverland maid who made allegations against "The King of Pop" in 1990 and ultimately reached a reported $2 million settlement with him in the 1994 -- is expected to testify for the prosecution, along with his mother.

The boy at the center of the 1993 scandal who reached a reported $20 million settlement with Jackson in 1994 has told prosecutors he does not want to testify. (Santa Barbara prosecutors decided not to pursue the 1993 case after they said the alleged victim refused to testify.) However, his mother is on the prosecution's witness list. Witnesses from the Neverland ranch who claim to have seen inappropriate behavior between Jackson and three other boys, including Culkin, are expected to testify. Melville said he would allow only witnesses who could testify to alleged actual physical, sexual misconduct.

Still, the absence of direct incriminating testimony from all but one of the boys Jackson allegedly molested or had designs on may confuse jurors and give the defense more ammunition to discredit the defense.

"I would not be taking a victory lap just yet if I'm the prosecution," ABC News legal analyst Joseph Tacopina, who also represents one of the unindicted co-conspirators related to the conspiracy charge in Jackson's trial, said on "Good Morning America."

"We are going to hear from one of the alleged victims," said Tacopina. "Out of the other four alleged incidents, three of the four people say nothing ever happened. The other one [the 1993 alleged victim] refuses to testify. I'm not sure this is the sort of evidence that will help the prosecution if it comes in that way," he added.

Culkin's representatives said after Monday's ruling that he "is presently not involved with the proceedings, and we do not expect that to change." But sources told ABC News that Jackson's defense plans to call the actor to the witness stand to refute the prosecution's claim.

If Culkin testifies and denies the allegations, he could cast doubt on the credibility on the prosecution's case.

"If he [Culkin] gets up on the witness stand and says, 'Nothing happened to me. Read my lips, nothing happened,' the jury has to accept that as fact," said ABC New legal analyst Dana Cole.

Debate Over Propensity Evidence

A change in California law in 1996 regarding sex crime cases has allowed prosecutors to present testimony on alleged bad acts or propensity evidence in Jackson's trial.

The prosecution has suggested that Jackson won the trust of his younger accuser, a cancer survivor who 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 the boy 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's alleged actions with his accuser in his molestation trial illustrate a pattern of bad behavior. Santa Barbara County District Attorney Tom Sneddon argued Monday that Jackson's inappropriate activities with the other boys included kissing, hugging and inserting his hands into their pants. He also said there was a pattern of "grooming," or preparing the boys for molestation.

"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.

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."

Unfair Advantage for a Weak Case?

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

"There are some that say the prosecution will use the previous [alleged] incidents to bolster an otherwise weak case," said Cron.

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.

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. The alleged victim and his siblings have testified and some courtroom observers believed their testimony was not as strong as the prosecution had hoped.

The alleged victim's sister testified that Jackson served her alcohol and that she saw him serve her brothers alcohol as well. She also said Jackson held her and her family virtual hostages of Neverland after the "Living With Michael Jackson" documentary aired on ABC. 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 Mesereau showed several inconsistencies in the various accounts of the alleged incident the boy described to 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.

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.

"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," Carlson said.

Testimony about the prior allegations is expected to begin in two weeks.