Difficult Task for Jackson Jurors

Jurors deciding Michael Jackson’s fate are grappling with voluminous and complicated legal instructions, some of which would flummox even a seminar of law students, experts said Monday.

The panel was given the highly unusual task of deciding two sets of molestation allegations by very different legal standards. First, they must determine if it is more likely than not that Jackson molested children in the early 1990s. Then they must determine by a much more stringent standard -- beyond a reasonable doubt -- whether he molested a 13-year-old cancer patient in 2003.

The panel also is supposed to view a videotape of the 13-year-old reporting the alleged abuse to detectives, not to determine if his story is true, but to decide whether he had been coached to deliver a false accusation.

The mental gymnastics the court is demanding from jurors strikes some observers as difficult, if not impossible.

“The average person is not used to making the fine distinctions the law is asking them to make,” said Craig Smith, a former Santa Barbara County prosecutor who is following the trial.

The panel completed its first full day of deliberations Monday and is scheduled to resume discussions today.

Santa Barbara County Superior Court Judge Rodney S. Melville gave jurors 98 pages of legal instructions before they retired to decide the case.

The jurors have varied educational backgrounds: three hold graduate degrees, one has a bachelor’s degree, two have community college degrees and six hold high-school diplomas with some or no college experience.

Jurors typically are asked to navigate complicated legal theories and facts, and for the most part, they perform their tasks seriously, legal experts say. Lawyers are often impressed by the fine grasp of legal points that highly diverse jurors display.

But the intellectual dexterity the court is asking of the Jackson jury troubles some experts.

Under a California law, prosecutors were allowed to present evidence that Jackson molested other boys more than a decade ago in order to show the pop star exhibited a pattern of sexually exploiting children.

Jurors were asked to determine whether the alleged acts took place by a “preponderance of the evidence” -- a standard ordinarily reserved for civil cases in which money, not a person’s freedom, is at stake.

Once they arrive at an answer, jurors were told to apply it to decide “beyond a reasonable doubt” -- a higher standard of proof typically used in deciding whether to send someone to prison -- whether Jackson had sexually abused the 13-year-old cancer survivor after plying him with alcohol.

Laurie Levenson, a professor at Loyola Law School in Los Angeles who has followed the case closely, worries that the instruction might lead jurors to apply the more-likely-than-not standard to the case before them, as well as to the old accusations.

Veteran Los Angeles defense lawyer Harland Braun also said he found that instruction disturbing. “It makes no logical sense to prove something by a preponderance of the evidence and that becomes the critical evidence to prove a defendant guilty beyond a reasonable doubt,” Braun said.

He also asserted that the instruction “is inconsistent” with another jury instruction regarding circumstantial evidence. That instruction states that “each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt.”

On the other hand, Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento, saw no problem with the instruction. He said it was “fairly common” for jurors to consider evidence that has not been proved beyond a reasonable doubt as they move toward an ultimate decision under a higher standard.

In recent years, the California Supreme Court twice has upheld the jury instruction requiring that a sex offender’s prior bad acts be proved by a preponderance of the evidence.

In the latest case, in 2003, the California Supreme Court unanimously rejected a defense lawyer’s contention that the instruction was likely to mislead jurors. Justice Marvin Baxter wrote that the “instruction nowhere tells the jury it may rest a conviction solely on evidence of prior offenses.”

But there is one important distinction between Jackson’s case and the 2003 case. Jackson, 46, has never been convicted of anything, including child molestation. Some experts say the instruction in Jackson’s case could be grounds for an appeal.

Santa Rosa defense lawyer Thomas Lundy, who publishes a newsletter on cases involving California jury instructions, said the California Supreme Court rulings may not be the last word on the issue. If Jackson is found guilty, a federal appeals court could strike down the conviction if it found that the instruction violated Jackson’s right to a fair trial, he said.

The jury was also instructed to consider a videotape of the accuser telling sheriff’s deputies about his alleged abuse. However, jurors are to view it not for “the truth of the matter” but rather to assess the boy’s demeanor during the interview, specifically whether he appeared to have been coached to falsely accuse Jackson.

The defense contends the boy’s mother is a known grifter who trained her son to go after Jackson so the family could sue him later.

Levenson suggested the distinction the court is drawing is nonsensical.

“How do you divorce what he is saying from how he is saying it?” she asked.

“It is mind-boggling to me how you can expect a jury to watch a videotape of the boy being interviewed by the police and revealing molestation and have the jury not consider whether the words he is using are true,” she added.

Former San Francisco County prosecutor Jim Hammer, a legal analyst for the Jackson trial, agreed.

“Once words are out there, it’s hard to disregard them,” he said. “I’m not sure jurors can do that.”

If the jurors are tripped up by the legal instructions, they would not be alone. The state Judicial Council is in the midst of a lengthy process of rewriting jury instructions into simpler, everyday language.

“In my experience, half of the questions [from deliberating juries] had to do with jury instructions,” Hammer said. “They’re cumbersome, complicated and too wordy. A group of law students would have a hard time understanding what they mean.”