Jackson DA May Get Burned by Media Spotlight

Published February 04, 2005

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The Michael Jackson trial is now underway. Like O.J. Simpson prosecutor Gil Garcetti (search) before him, District Attorney Tom Sneddon (search) (who is reportedly the subject of at least one of Jackson's songs) has just commenced the prosecution that has the potential to end his career or launch him into national politics.

This occurs against a backdrop of massive pretrial publicity and jurors and witnesses who stand to make quite a bit of money from book deals and even media appearances. The media focus around the Michael Jackson trial is so intense, and promises to be so enduring, that there is commercial potential for individuals—such as jurors and witnesses— who play even the most traditionally neutral roles in the trial.

While many states have laws preventing criminal defendants from profiting from their crimes, few if any have laws that prevent jurors or witnesses from profiting from their roles in a criminal trial. New York's David Berkowitz (search), its famed Son of Sam killer, made headlines when he wrote a book. But, under a law passed specially to prevent Berkowitz from making money off his murdering of six people in 1976 and 1977 in New York City, he was unable to make any money from the book.

How does the possibility of book deals, media appearances and even television projects affect a witness or juror? Amber Frey (search), the former mistress of convicted wife killer Scott Peterson (search) who is now an author, offered the most interesting testimony in a trial that transfixed the nation. The most engaging part of her story, though, was already a matter of record: she had had several very incriminating conversations with a man accused of murdering his wife. Her testimony could not deviate much from what had been recorded, and it didn't have to be embellished or enhanced in any way to help convict Scott Peterson.

But what of a witness whose testimony is not something that was ever memorialized? Most trial testimony does not make reference to something recorded in the past, like Amber Frey's telephone conversations. But most trials do not take place under a media spotlight like that focused on the Michael Jackson trial.

To get a sense of just how busy things are around the courthouse, the Michael Jackson trial is to be covered not just by traditional news outlets, but by nightly entertainment shows that plan to air a report each day of the trial. This was something absent even from the O.J. Simpson trial.

While the testimony presented by the Jackson prosecution might be perfectly truthful, the temptation to embellish it is clear. If Amber Frey's book deal is any indication of things to come, then we can expect the most memorable of the Jackson trial witnesses to have his or her book out within three months of the trial's end. And the testimony that such witnesses will provide does not presently seem to be something that can be tested against something like a recording.

The Jackson case, by its nature, stretches the limits of what it means to be an impartial juror. Every day, potential jurors are dismissed because they either know or have only a tangential relationship to, a criminal defendant. But a huge number of people in America have owned a Michael Jackson album at one time, and it would be hard to find someone who does not know who he is.

When these jurors are asked the most important voir dire question, "Can you listen to the evidence impartially," it's hard to know if their answers can be accurate. What does it mean to be impartial when hearing about criminal allegations against someone as famous as Michael Jackson?

Jurors are not beyond making pitches to the media immediately after rendering a verdict. Most of the Peterson jurors went straight home after Scott Peterson was sentenced, but three of them participated in a press conference. One went as far as to tell members of the press that she had no money. Some in the media remarked that it sounded an awful lot like a solicitation for a book deal.

The problem for prosecutors is that jurors tend not to know that their comments can betray infirmities in the jury deliberations. Jurors have been known to tell the press within minutes of being discharged that they chose to ignore certain evidence, decided guilt before hearing all of the evidence, and even discussed the testimony with their fellow jurors long before the jury had been charged. Every one of these things can serve as grounds for appeal.

The trial judge in the Jackson case, perhaps wishing to avoid immediate post-trial comments by jurors, has admonished jurors to wait at least one month before making any comments to the press about the trial.

We can be certain that the historic media interest in the Jackson case will be exploited by the defense and will probably play a role in an appeal, if there is one. Prosecutor Tom Sneddon is dealing with far more variables than any district attorney before him, and the media presence at the biggest trial of his career might be the one that most jeopardizes its result.

Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters. He is the author of the soon to be published, "The New Immigration Law and Practice."

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