Complex instructions could slow Jackson jury

98 pages of legal terms likened to `dense fog'

June 12, 2005|By NEW YORK TIMES NEWS SERVICE

SANTA MARIA, Calif. - Jurors have spent five days deliberating on criminal charges of child molestation against Michael Jackson, and lawyers say the panel might spend more than two weeks weighing Jackson's fate, given the trial's three-month length and the volume of testimony heard.

Some who have been following the case said the complexity of the instructions given the jurors by Judge Rodney S. Melville of Santa Barbara Superior Court might also be slowing them down.

The jury left for a weekend break Friday afternoon without reaching a verdict. Deliberations are expected to resume tomorrow.

The 98 pages of instructions require the jurors to engage in mental gymnastics, said Laurie L. Levenson, a professor at Loyola Law School in Los Angeles who has been closely following the Jackson case.

Two of the critical pieces of evidence in the trial are videotapes that both sides used in their closing arguments, one of Jackson and one of his accuser. The judge allowed them into evidence not for the truth of the statements contained in them, but rather to allow the jurors to assess the demeanor and credibility of the two main figures in the trial.

One tape is of a 2003 police interview of the accuser in the case, then a 13-year-old cancer survivor, in which he tells a police detective of being molested by Jackson. The boy is reluctant, hesitant and shy, in contrast to his demeanor on the witness stand.

The other tape consists of outtakes from the 2003 documentary Living With Michael Jackson, which included long statements by Jackson about what he calls his innocent love of children and his lonely childhood.

"There's a high possibility that the case will be decided on the tapes," Levenson said. "The jury is not supposed to consider them for the truth of what was said, but it is going to be impossible for them to segregate what Michael and the boy said from how they said it. The court is asking them to do things the human mind cannot do."

Levenson also said the instructions regarding the use of evidence of prior sexual misconduct by Jackson, though he was never charged or prosecuted, might also baffle the jurors.

They were told that they can consider the testimony about earlier incidents if they find it supported by a "preponderance of the evidence." That is a considerably lower standard of proof than the "beyond a reasonable doubt" standard required for a conviction on the current charges.

"That can get confusing to jurors," Levenson said. "As a defense lawyer, I would worry that there may be some slop-over to the current accusations if they believe the testimony about the earlier cases."

Levenson said the California Bar is revising the standard instructions to criminal juries used in California courtrooms to make them shorter and easier for jurors to understand. The new instructions are to be issued this year.

"Just the volume of instructions is a challenge, and the legal language itself is a hurdle," she said. "They tend to disregard these instructions because they just don't understand them."

Because jury instructions are written by lawyers, they draw on a specialized legal vocabulary that can be confusing, said Shari Seidman Diamond, a law professor at Northwestern University who has studied juries and jury instructions extensively and who reviewed the instructions given in the Jackson case.

"Running through these instructions is the use of words that are real words in everyday life that have different legal meanings," she said, noting terms such as "attempt," "reasonable" and "conspiracy," which have specialized meaning in criminal law. "We know that makes instructions harder to deal with."

The instructions in this case are not unusual in their lack of clarity, Diamond said. "They're quite horrifying, although, of course, that's not an uncommon situation," she said.

The instructions bury on Page 45 the explanation of what constitutes reasonable doubt and offer little explanation of why jurors should ignore certain pieces of evidence or why they should view them with caution.

"In this case, amid the dense fog of these instructions, the question is really the fundamental credibility of the witnesses for the prosecution," Diamond said.

Although not all the instructions are equally important in evaluating witnesses, she said, "there are a number of charges where really understanding them could have an influence on how people make judgments about them."

Jury instructions can be made much clearer, but most judges are not necessarily concerned about the understanding of the lay juror, Diamond said. Instead, judges are worried about whether cases will be reversed because instructions are flawed, she said.

"The judge wants above all to make sure that the instructions are not potentially reversible on appeal," Diamond said.

It is much easier in a jury instruction to parrot the text of a legal opinion or a statute, however incomprehensible it might be, than it is to paraphrase the same thing in clearer language and risk the wrath of an appellate court, said Peter M. Tiersma, a member of the California Judicial Council's task force on criminal-jury instructions and a colleague of Levenson's at Loyola Law School.

That is how it has been in the past, he said: "If you changed it, you risked getting it wrong."

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