Old Allegation Could Affect Jackson Case

As the Michael Jackson prosecution inches forward, people involved in the child molestation case can’t help looking back -- to decade-old allegations that the entertainer sexually abused another boy who later declined to cooperate with authorities.

The Santa Barbara County district attorney’s office has signaled that it may try to use evidence from the earlier investigation to bolster the current case against the singer. Legal experts say much of the material would be admissible only if the former accuser testifies.

The alleged victim went silent after the entertainer paid him a multimillion-dollar civil settlement in 1994. A criminal investigation, launched in the summer of 1993, was subsequently shelved with no charges filed.

Now a New York resident in his mid-20s, the alleged victim can be subpoenaed as a witness against Jackson, although state law bars prosecutors from compelling him to answer questions, the experts say.

The man, whose identity is being withheld by The Times, could not be reached for comment. A person close to him said it was uncertain whether he would agree to take the stand.

“I don’t think he’s made up his mind one way or the other,” the confidant said. He spoke on the condition of anonymity because a court order forbids anyone with a potential role in the case to discuss it. “There are a lot of pros and cons for him.... A pro would be to get closure.”

If the New Yorker proved willing to testify and the court allowed the prosecution to call him, the case against Jackson could be strengthened dramatically, according to lawyers experienced in child sex-abuse prosecutions.

That is because molestation verdicts often hinge on evidence of “prior conduct” involving other alleged victims, the attorneys say.

“It’s a prosecutor’s deadliest weapon in a child molestation case,” said Steve Balash, a Santa Barbara defense lawyer. “Lurking out there is this civil settlement. There will be many legal battles over that.”

William Dworin, a retired Los Angeles police detective who supervised the old investigation, said the purported circumstances in the two cases were similar, which is something prosecutors look for in prior-conduct evidence.

Each time, Dworin said, Jackson was alleged to have cultivated the boy for an extended period, lavished attention on the child’s family and slept many nights in the same room with him.

“What it’s going to show is a pattern of activities,” Dworin said. Jackson had contended that the investigation grew out of an extortion plot by the boy’s father. He dropped that claim in the civil settlement, but maintained his innocence.

The settlement paid the boy at least $15 million. It does not prohibit him from testifying in a criminal matter.

Jackson, 45, pleaded not guilty last month to seven counts of engaging in lewd and lascivious acts with a minor and to two counts of plying the 12-year-old with an intoxicant. The proceeding returns to a Santa Maria courtroom on Feb. 13 for the scheduling of a preliminary hearing. After that hearing, Superior Court Judge Rodney Melville will determine whether Jackson goes to trial.

The charges carry a maximum sentence of 24 years in prison.

The case is unfolding in extraordinary secrecy, so little is known about the strategies taking shape on either side. In addition to his gag order, Melville has sealed from public view search warrant affidavits that might shed light on the evidence.

Santa Barbara sheriff’s deputies seized hundreds of items -- including videotapes, computers and personal papers -- from Jackson’s Neverland Ranch in November.

On Saturday, Santa Barbara authorities conducted a raid on the Calabasas home of pornography producer and Jackson business associate F. Marc Schaffel.

In 1993, Los Angeles and Santa Barbara law officers searched Neverland, Jackson’s Century City condominium and his parents’ home in Encino. They also photographed Jackson in an attempt to verify the alleged victim’s description of the singer’s genitalia.

Dworin said the searches turned up “no smoking gun,” but he added that the pictures of Jackson matched the description. He said that investigators found a book depicting nude children, although it was not illegal pornography.

He said two other boys told detectives that Jackson had touched them inappropriately. But he said their statements were not as strong as those of the accuser in the civil suit, who was 13 at the time of the alleged molestation.

People knowledgeable about both cases said the authorities had sworn depositions that the boy’s lawyers gathered for the civil suit.

Santa Barbara Dist. Atty. Tom Sneddon has shown a clear interest in the old material. In an order that kept the recent affidavits sealed, Melville noted that they included “quotes from earlier investigations of a minor with whom the defendant made a civil settlement approximately 10 years ago.”

Because of the gag order, Sneddon, Santa Barbara County sheriff’s officials and Jackson attorney Mark Geragos would not comment. Before the order was issued, however, the district attorney said he never considered the 1993-94 case closed.

Under the state civil code, alleged victims of a sexual assault can be subpoenaed, but they cannot be cited for contempt if they refuse to testify.

The New York man has been fodder for tabloid stories, as has the evidence his testimony might support. If he again declines to cooperate, statements he made during the investigation and civil suit would almost certainly be inadmissible, even under the relatively loose hearsay rules in sex abuse cases, the experts say.

“They wouldn’t get in,” said Gerald Uelmen, a Santa Clara University law professor.

Courts generally exclude hearsay as secondhand accounts that deny the defense an opportunity to cross-examine the accuser. They frown especially on hearsay of “uncharged conduct” that can smear a defendant’s character without providing direct evidence of the crime for which he or she is being prosecuted.

“The basic rule goes back several hundred years,” said David Leonard, a Loyola Law School professor, referring to English and American legal traditions. “You try someone for what he’s done, not who he is.”

If the New York man is prepared to testify, Jackson’s lawyers will ask Melville to keep the alleged victim off the stand on grounds that his appearance would unfairly prejudice the jury, a person close to the defense team said.

But the legal scholars said Melville would have room within the hearsay restrictions in sex-abuse cases to permit the man to testify. Those limits were relaxed in the mid-1990s.

“California law is quite permissive in that allegations of prior abuse are admissible,” said Thomas Lyon, a USC professor. “If you’ve read the documents that have been released, there are a lot of similarities between this case and the prior case. The judge will probably admit it.”