Law Bolsters Case Against Jackson

A recent parade of witnesses who dredged up Michael Jackson’s history with boys put the spotlight on a California law that allows prosecutors to bolster sex-crime cases with lurid stories from a defendant’s past.

Upending decades of common law, the California Legislature agreed in 1995 that sex crimes against minors -- which often pit the word of a child against that of an adult -- were so hard to prove that admitting evidence of a defendant’s past helped to even the playing field.

Critics cried foul, saying the law went against the fundamental precept that a defendant should be tried for specific offenses, not for his overall character and past.

But in 1999, the California Supreme Court upheld the law, which was modeled on a federal statute that covers crimes on parks, military bases and other federal land. Today, at least a dozen states, including Texas, Illinois and Arizona, have similar laws.

“That’s how we prove their conduct, with their prior conduct from the pool of victims they were able to molest,” said Los Angeles Police Department investigator James Brown, who supervises the six detectives in the LAPD’s sexually exploited child unit. “Most child sex abuse is committed in privacy, with little physical evidence and little or no witnesses, so the [prior] conduct is important.

“It’s all about corroboration,” he added. Police and prosecutors corroborate the allegation in question “by showing the past behavior and patterns and conduct.”

Attorneys in states that don’t allow such evidence are taken aback by the California law.

“It makes it possible to prove a case with very little or no evidence,” said Norman Shapiro, vice president of the New York State Defenders Assn. and a lawyer for more than 50 years. “It doesn’t seem to be very fair. It doesn’t seem to be very American, to tell you the truth.”

Said Miami defense lawyer Roy Black: “They’ve really turned the law on its head there, and it has dangerous implications.”

Anne Bremner, a Seattle lawyer and former prosecutor who is following the Jackson case as a television analyst, said the old allegations could be grounds for an appeal if the pop star is convicted. She said the evidence of Jackson’s past alleged misdeeds came largely from third-party witnesses, preventing the entertainer from confronting his accusers in court.

“This is a classic, demonstrably weak case that has now been buttressed by this pattern of evidence,” she said. “The issue hasn’t been heard by the U.S. Supreme Court. This could be the perfect test case.”

Jackson, 46, is charged with four counts of molesting a 13-year-old boy in 2003, four counts of furnishing the teenager with alcohol, one count of attempted molestation and one count of conspiracy to imprison the boy’s family at the singer’s Neverland ranch in the Santa Ynez Valley. If convicted of all charges, he could face more than 20 years in prison.

With Santa Barbara County Superior Court Judge Rodney S. Melville’s permission, prosecutors spent five days focusing on Jackson’s past. They presented testimony that the entertainer had fondled his former maid’s son, took a shower with a young Australian boy and performed a sex act on a boy while a Neverland security guard watched through a bathroom window -- all of this 12 to 18 years ago.

Former state Assemblyman James Rogan said he wrote the 1995 law with Jackson in the back of his mind. A year earlier, Santa Barbara County prosecutors had ditched a highly publicized investigation of Jackson after the singer paid a reported $20-million settlement to an alleged victim, who then stopped cooperating with authorities.

Rogan’s colleagues in the Legislature said testimony about previous allegations was relevant, because psychological research showed that pedophiles tended to repeat their offenses. Research had also found, they said, that such crimes were based on deep-rooted character traits and were not acts of passion, like murder or assault and battery often were.

“It’s almost always a he-said, she-said thing,” said Gary Schons, a senior state assistant attorney general based in San Diego. Jackson’s “case is a pretty good example of that. So, because of the nature of the offense and the inherent credibility vulnerabilities of the victim and the documented proof that sex offenders repeat their crimes, the Legislature made the decision the propensity evidence should be admitted.”

In 1999, the state high court took up the issue, ruling that evidence of prior sexual misconduct did not violate a defendant’s right to a fair trial, even though it had been barred for hundreds of years by common law.

“A long-standing practice does not necessarily reflect a fundamental, unalterable principle embodied in the Constitution,” the court’s opinion said.

The Alameda County case involved a man accused of a sexual assault by a victim who reportedly made conflicting statements about her attacker. Prosecutors brought in evidence from two prior rape convictions, and the jury returned a guilty verdict.

In its opinion, the state Supreme Court noted that California courts in general had been lenient in allowing testimony about prior acts to prove motive. So the new law was not a radical departure, the justices said.

“We see no undue unfairness in its limited exception to the historical rule against propensity evidence,” the court noted.

“Prior bad act” testimony is now routinely admitted in California sex-crimes trials, legal experts said.

San Diego appellate lawyer Martin N. Buchanan argued to the state Supreme Court in 1999 that its decision would admit a flood of new evidence into California courts.

“That type of evidence is critical in an instance where the case is otherwise weak,” Buchanan said. “It can bolster the prosecution’s case when it has very little of a case otherwise. It’s contrary to centuries of common law jurisprudence.”

Dallas Sacher, a Santa Clara, Calif., appeals lawyer, said the law is unfair. But he added that California’s approval of such a law -- and the courts upholding it -- is no surprise.

“There’s no constituency for people that commit sex crimes. That’s the most disfavored class in society,” he said. “It’s dangerous. It’s the triumph of politics over common sense.”

San Francisco Bay Area lawyer Phil Schnayerson, past president of the California Attorneys for Criminal Justice, said the law could lead to wrongful convictions.

“Juries convict people they don’t like, and they tend not to convict people they like,” he said. “If you show [that] a person is dirty enough, whether or not they’re guilty of the crime they’re charged with, the jury will find them guilty.”

Santa Barbara County Dist. Atty. Tom Sneddon, the prosecutor in the Jackson case, argued that the past evidence should be admitted in part because the defense had used a “scorched earth ... take-no-prisoners approach” while questioning Jackson’s current accuser, trying to show inconsistencies in his testimony. Among other things, the youth said he was no longer certain of when Jackson allegedly molested him.

“These are precisely the kind of tactics that the Legislature recognized, where propensity evidence should be admitted in order to balance the scales,” Sneddon said. “This is the kind of evidence precisely that this jury ought to hear ... that in fact, this is the way the defendant operates.”