Jackson, Predator Or Prey?

Michael Jackson arrives at the Santa Barbara County Courthouse for defense testimony in his child molestation trial Wednesday, May 25, 2005 in Santa Maria, California. ((AP Photo/Aaron Lambert,pool)
Attorney Andrew Cohen analyzes legal issues for CBS News and

Michael Jackson won the battle of his molestation and conspiracy trial and sometimes it seemed like it wasn't even close. But his in-court victories, large and small, which piled up almost daily, don't guarantee that he'll win the war and avoid a catastrophic conviction.

Jackson's dilemma is that jurors could believe with metaphysical certainty what witnesses established about the alleged victim's lack of credibility and accuracy and reliability — and still convict Jackson of a serious crime. Strong proof of the family's creepiness and predatory behavior doesn't necessarily disprove evidence of Jackson's bad behavior. Sometimes, shady people are victims, too. And sometimes, guilty defendants have been the targets of their witnesses.

This seedy case has always been all about conflicting patterns. Prosecutors argue that the key pattern in this case is Jackson's seduction of young boys and the manner in which he had his henchman try to cover it up. Defense attorneys argue that the vital pattern here is the accusing family's manipulation and extortion of celebrities, especially the particularly vulnerable and naïve Jackson. If the question for jurors were merely "is Jackson predator or prey?" the job for the panel later this week might be easier than it is otherwise likely to be. At least in that scenario the choice is clear and unambiguous.

But what if the jury is inclined to believe that Jackson is both predator and prey? If that is where the panel comes down during deliberations, the King of Pop will be in big trouble. This is not a contest between an alleged victim and a defendant over who is more culpable. There is no comparative guilt in a criminal case. The young man and his family are not the ones on trial. And a "tie" over wrongdoing has to go to the prosecution, despite the burdens of proof and the presumption of innocence. None of this bodes well for the defense.

If jurors believe that Jackson is both predator and prey, it also means that the panel believes that the defendant and his accuser (and family) essentially conspired with one another, each to achieve his or her own particular goals. If you buy into this theory, Jackson conspired to lure the young man into his confidence to molest him and the young man and his family encouraged this, even pushed for it, to get close to Jackson so they could get rich off him. One plan could not have occurred or succeeded without the other. The defendant and the alleged victim, the argument goes, enabled one another down a path that, win or lose, has led them both to bad times.