Past Cases Loom Over Jackson

The judge in the Michael Jackson trial is expected to make a crucial ruling today on whether previous sexual accusations against the pop star may be used to strengthen the case that he molested a teenage cancer survivor at his Neverland ranch in 2003.

Santa Barbara County Superior Court Judge Rodney S. Melville could allow prosecutors to present evidence about seven allegations.

Jurors would probably hear a young Los Angeles man testify that at age 13 he was molested by the pop star during sleepovers in 1993. They may also consider testimony from a former Neverland maid’s son who allegedly was molested at Jackson’s ranch in the Santa Ynez Valley in the early 1990s.

No charges were filed in either case, and Jackson has denied molesting anyone. But experts say it’s all but certain that the evidence will be allowed. If so, Jackson will join hundreds of others who have been tried under a 1995 state law designed to boost convictions of sex offenders.

The law, which created Section 1108 of the state evidence code, permits prosecutors to introduce evidence of previous sexual allegations, even if the acts are decades old and no investigation had been conducted or charges filed.

According to many legal experts, Jackson’s chances for an acquittal would plummet because the addition of prior allegations often dooms the defendant.

“If it gets in and it’s good, then he’s dead,” said San Diego public defender Gary Gibson. “If jurors see more people coming in and saying the same things, they’ll reach a point where they’ll ask: How many more do we have to hear from? Can everyone be lying?”

Critics say that’s just the problem with the 1995 law.

“It completely distracts the jury from consideration of evidence about the charged offense,” said Dallas Sacher, a criminal appellate attorney in Santa Clara, Calif. “It allows the government to substitute any weaknesses it has in its case by saying, ‘Look -- this dude has done it before.’ Then you’re convicting someone on who he is -- not on what he did.”

In the Jackson case, prosecutors plan to present purported victims, police officers and supporting witnesses, while defense witnesses will attack the credibility of almost all concerned. Although Melville could limit some evidence, the process still could take weeks.

For prosecutors, allegations of prior molestations could shore up shaky testimony from the accuser in the current case, who was unclear on details such as the number and timing of the alleged sexual contacts. In addition, physical evidence has been scant, confined mainly to the boy’s fingerprint found on an adult magazine in Jackson’s bathroom.

To that extent, the case against Jackson, 46, is similar to those against many other alleged sex offenders: Accounts from victims -- especially molested children -- are often spotty, and physical evidence is often lacking.

To give prosecutors more ammunition in such cases, the Legislature approved Section 1108, which was soon followed by a measure allowing prior allegations in domestic abuse cases. The measures were based on a 1994 federal statute.

In 1999, the state Supreme Court unanimously upheld Section 1108, although the justices acknowledged that it ran counter to a tradition “nearly three centuries old in the common law.”

In most criminal cases, prosecutors can introduce evidence of prior allegations only in a few narrowly specified circumstances that relate to such factors as identity, motive and intent.

But in sexual and domestic abuse cases, they can use the old evidence to prove that the defendant is the kind of person who would commit such crimes -- a devastating conclusion for most alleged child molesters, according to legal analysts.

In Orange County, Section 1108 is being used in a case that triggered national attention -- the kidnapping, sexual assault and killing of 5-year-old Samantha Runnion.

Three teenage girls recently were allowed to testify about alleged sexual abuses they suffered at the hands of the defendant, Alejandro Avila.

Avila was acquitted in a case involving two of the girls. The third, now 16, said she had never come forward before because Avila told her “someone would be killed.”

The law also has been applied in less notorious cases. In a 2002 case against Folsom resident Douglas Richard Britt, jurors heard testimony about Britt’s indecent-exposure conviction 24 years earlier. Such testimony generally would be barred in other kinds of criminal trials as irrelevant.

Britt was charged with breaking into a neighbor’s home before dawn and masturbating in the bedroom of two sisters, ages 10 and 14. At trial, a judge allowed testimony from a woman who was driving in Orange County in 1978 when Britt, driving a delivery truck, honked at a red light and opened his door to draw her attention. He was at the wheel, naked and masturbating, she testified.

In addition, Britt’s former neighbor testified that when she was 12, he lured her to his backyard, where she saw him standing naked at his sliding-glass door. No charges were filed.

An appeals court upheld Britt’s conviction for indecent exposure, burglary and child molesting in the 2002 trial. Because he had been found guilty in an earlier child-molestation case, he received a 17-year prison sentence.

If Jackson is convicted on the 10 felony counts he has been charged with, he could face 20 years in prison.

Convictions based on Section 1108 evidence have been reversed just once. In that case, a Sacramento mental health worker was charged with groping two female patients, but jurors also heard about a vicious 1972 rape he had committed that involved genital mutilation. That evidence should have been excluded, a state appeals court ruled in 1998, because the earlier crime was so heinous and so different from the later charges that it served only to inflame the jury.

In the Jackson case, prosecutors are likely to contend that the singer seduced all of his alleged victims in much the same way, lavishing them with attention and expensive gifts.

The judge has said he will decide whether to allow the prior allegations after a three-hour hearing this morning.

That could set the stage for a courtroom confrontation between Jackson and a 25-year-old man, the alleged Los Angeles victim whose family reportedly received a multimillion-dollar settlement to drop their lawsuit against the pop star in 1994.

As in the current case, the boy said at the time that his relationship with Jackson escalated from gifts and long phone conversations to cuddling and sleepovers, and finally to sex. He confided the alleged episodes to a therapist, who alerted authorities.

The alleged victim, his parents and his uncle, a Santa Barbara attorney who wrote a book about the family’s experience, are all on the prosecution’s witness list.

So are Jackson’s ex-maid and her son. In interviews, the woman has said she quit working at Neverland in 1991, disgusted by Jackson’s contact with young boys.

Defense attorneys signaled their strategy on the old allegations well in advance.

In court filings, they dismissed their client’s accusers as “a collection of disgruntled former employees, paid tabloid informants and other disreputable characters.”

They also might try to use the past allegations to their advantage, said Laurie Levenson, a former federal prosecutor who teaches at Loyola Law School in Los Angeles. They could argue that the family in the current case set Jackson up, knowing that the singer would be vulnerable because of the Los Angeles boy’s 1993 lawsuit and its lucrative settlement, she said.

For Santa Barbara County Dist. Atty. Tom Sneddon, the testimony about the old allegations will mark a return to a case that never took off. In 1994, Sneddon had to abandon his case against Jackson when the Los Angeles boy and his family suddenly decided not to talk about the pop star.

Jackson’s success in settling that suit may have spurred the law that could be so damaging to him now.

“The Jackson thing may have been on the back burner of my mind,” said James Rogan, an ex-prosecutor and former judge who sponsored the law creating Section 1108 when he was a California assemblyman.

Rogan, who later served in Congress, described his measure as a vital tool for prosecutors trying to put away repeat sex offenders. Now prosecutors use it all the time.

“If you were the D.A., you’d be stupid not to use it,” said Sacher, the appellate attorney. “If Sneddon ever had any doubt about proceeding with this case, 1108 would have eased it.”