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Debate Club
DEBATE CLUB 4/11/05

Does Fame Help in Court?

Julie Hilden and Todd D. Kendall debate.

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Michael Jackson's trial on charges of child molestation started in January, but his brushes with the law have been grabbing headlines since the early 1990s. The intensity of media coverage and Jackson's longstanding fame may well have an effect on the jury. While Jackson has drawn unflattering coverage, jury members may see him in a more favorable light, perhaps because they own his albums, perhaps because they think he's been persecuted for too long (or perhaps even because they're convinced by evidence from his lawyers).

Is the King of Pop's fame an asset or a detriment in the courtroom? Do celebrity defendants normally get a fair shake?


Julie Hilden is an attorney and the author of Three. Todd D. Kendall is Assistant Professor of Economics at Clemson University.


Hilden: 4/11/05, 09:11 AM
Hello! And greetings from L.A.!

To begin our exchange, I think one less-discussed aspect of celebrity justice may be that juries—or even judges—have more tolerance for a defendant's eccentricity if he or she is a celebrity.

I'm definitely not saying that celebrities overall get a break in the justice system; I think there are serious disadvantages to being a celebrity, too, in this context. But I am saying that celebrity status can make it easier for a defense lawyer to tell the jury a story of the case that suggests the defendant, while eccentric, is nevertheless innocent.

For instance, I think the fact that the public has known Michael Jackson since he was a child, as a result of his very early celebrity, normalizes his having spent so much intimate time with other people's children as an adult. It's interpreted as regression, not perversion, because we can so easily visualize what Jackson is trying to regress to: his appealing and seeming untroubled child self.

I don't mean to make a judgment as to whether what's at the heart of the Jackson case actually is regression or perversion (or a mix of both). But I do want to point out that Jackson's celebrity status means the regression story is a pre-existing template, one that the defense can easily evoke without spelling it out—letting jurors believe that they came to that interpretation more or less by themselves, and then hoping that, as their "own" opinion, they will press for it in the jury room.

Imagine if Scott Peterson had been a celebrity—say, a famously tortured musician. Perhaps his eerily affectless mien at trial would have been reinterpreted as a sign of internalized suffering—not callousness.

For instance, if Courtney Love had disappeared, with the same evidence being offered against Kurt Cobain, and Cobain had had Petersen's blank reaction, I think there's little chance Cobain would have been convicted; his image was that of a sensitive soul, and it's easy to imagine him being affectless as a result of trauma and wrongful accusation, not guilt and shame.

Especially in a circumstantial case like the Peterson prosecution, our sense of the defendant is so crucial—and celebrities come with a pre-spun, pre-packaged image. Scott Petersen, by contrast, was subject to the nightmare of having a lot of his image created by his deceased wife's family, who knew he was an adulterer, and believed he was a murderer. A celebrity's image would have been created by adept P.R.. Ordinary defendants don't have the luxury of arriving at court with a ready-made positive image; their image, for the judge and jury, is largely constructed by their physical presence and by the charges against them.

I don't know if Paula Abdul's appealing image helped her garner a modest penalty for her recent driving offense (she clipped another car on the L.A. freeway). But I thought it was an interesting and courageous move for her to reach out to Scott Savol—a contestant with a far worse, but apparently one-time, offense of violence toward the mother of his child. Abdul did not have to associate herself with Savol, but she chose to; he says she gave him a necklace that says "Embrace your imperfections." In the end, though, I doubt the association will hurt her. Already established as generous in her comments to "American Idol" contestants, Abdul may simply also be perceived as generous in reaching out to a contestant whose mistake came back to haunt him. Again, a positive image normalizes a possibly questionable act (reaching out to make common cause with a wife-abuser).

But could the "image effect" also work the other way? Is there a celebrity with a negative image who has been wrongly convicted—or at least hurt at trial by a pre-existing negative image unrelated to charges against him or her?

I worried that Courtney Love would have problems with custody of her daughter, and with the various charges against her, in part because of her image, but that hasn't seemed to be true; she's seemed to have come through it all relatively unscathed, considering the evidence against her.

I really can't think of an example of a celebrity whose image has worked against him or her in a criminal case—can you? I'm blanking.

I can certainly name celebrities who might be toast if they were indicted—such as Nick Nolte, whose prior, disheveled arrest photo is emblazoned on the minds of many. Or Tom Sizemore, who probably shouldn't even be jaywalking now, he is so unlikely to get a fair trial.

Kendall: 4/11/05, 02:13 PM
Yes, Tom Sizemore would be wise to keep all of his prosthetic appendages out of court. Whizzinators aside, let me say how much I'm looking forward to discussing celebrity justice with you this week. And I'm glad you've started us off talking about image and reputation, which I think are at the crux of the case as far as stars in the courtroom go.

You raise an interesting, and possibly correct, thesis that juries view a celebrity's current behavior through the lens of his pre-trial image. I would argue, however, that at least to some degree, it fails a test of strategic logic (specifically, it's not a "Nash equilibrium") because if jurors really do hold these beliefs, stars with the most favorable images can take advantage by engaging in more malfeasance (or at least they can do less to avoid the appearance of such), particularly late in their careers. And if they do so regularly, then the jurors' beliefs aren't really rational in the first place. Now I don't claim to know how jurors form their beliefs, but it seems just as logical to me that jurors might suspect a celebrity defendant was using his eccentric public image to get away with something serious.

On the other hand, I'm perfectly willing to entertain the possibility that neither jurors at a criminal trial nor movie stars are always the paragons of rationality we'd like them to be! Quick confession: I've never actually served on a jury myself, since voir dire tends to end quickly when you say you're an economist and think that human life has a finite price!

Nevertheless, this may be part of the reason we don't see, as you mentioned, many celebrities with bad reputations suffering for them at trial—they (or their lawyers, at least) know their image and so they behave better, or if they do commit crimes, they settle, plea bargain, or otherwise avoid jury trials.

This is what makes Martha Stewart's behavior so anomalous to my mind. If she's truly as cold and calculating as her reputation suggests, shouldn't she have done more to keep herself out of court, where her negative image clearly preceded her?

And certainly, as you said, there are many cases in which celebrities with serious image problems managed to beat the rap (one way or another) in circumstantial, but strong, cases: Snoop Dogg, Jim Brown, Robert Blake, Allen Iverson, P. Diddy, and so on.

So I suppose I'd agree with you that Michael Jackson's image may offer his defense attorneys the opportunity to (either subliminally or explicitly) present a more plausible defense, but I'd also argue that such a positive effect could be deeply buried under the countervailing negative frames of reference the jury probably associates with Jackson's eccentricity. In particular, I suspect the charges against Jackson struck a lot of people as plausible, prima facie, because when we hear that he lets children sleep in his bed, it fits so well into the common view of him as a scary freak.

To put it another way, Paul McCartney is an equally famous but less eccentric pop star who has a long history of animal rights activism. If he were accused of operating a cockfight in his back yard, wouldn't a juror be less likely to believe it, than they would that Michael Jackson is a child abuser? What I'm saying is: jurors might be able to psychologically justify Michael Jackson's behavior before Paul McCartney's, but I think Jackson's image makes it more likely they'll believe it happened in the first place and that gives prosecutors a big head start.

Moreover, as you implied, eccentricity is just one of many stereotypes that follow stars into the courtroom. Others include: wealth and ostentatiousness, social insularity, and political and social leftism. All of these probably frame celebrities in jurors minds, and (outside of L.A., at least!), I suspect usually in a negative manner.

I'd like to volley the image issue back into your court by considering the nexus of celebrity and wealth. I don't think there's much doubt that wealthier people tend to hire better attorneys and so have an advantage in court, but does celebrity increase or decrease this advantage, relative to, say, an equally wealthy, but non-famous defendant? In economic terms, are wealth and fame complements or substitutes? Would you rather be Ken Lay or Michael Jackson?

Also, may I broach the subject of defining "a fair trial"—this seems to me the elephant in the room—over which I suspect your thoughts are much more well-formed than mine? Under which dimension of justice does Michael Jackson's celebrity help or hurt him the most? In particular, does Jackson's fame increase or decrease his likelihood of conviction relative to: (1) Joe Schmo's likelihood of conviction and/or (2) the truth about whether Michael Jackson actually committed a crime? Which of these norms is more relevant?

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Hilden: 4/12/05, 09:16 AM
When you ask, "Would you rather be Ken Lay or Michael Jackson?" you put me to a hard choice that involves nightmares of waking up as either a grizzled fraudster or someone with the responsibility to care for llamas. On the whole, I would rather be Alicia Keys.

But back to the topic at hand—is it better, when facing trial, to be wealthy or a celebrity?

I think one advantage of simply being wealthy is that you generally get better advice as to which lawyer you should choose. Maybe your college roommate was a lawyer; at a minimum, your CEO friends have their General Counsels. But celebrities seem to me, often, to pick the lawyer who is the flavor of the month (Mark Geragos comes to mind) yet doesn't seem to be super-talented. This is a great way to choose a $2000 handbag that will be featured in US Weekly, but a poor way to choose a lawyer.

Celebrities seem to choose the lawyers their celebrity friends chose earlier. But were these lawyers even good in the first place? Or were they just excellent schmoozers? Good-looking, slick lawyers often tend to irritate juries; there's a reason David Boies is still wearing those ratty suits from Land's End after all these years.

One exception to the weakness of certain celebrity lawyers is Tom Mesereau. As far as I can tell, he's been superb in the Jackson trial. His sharp cross-examination is educating law students (and lawyers) everywhere. He makes me proud to be a lawyer, because he is operating at a very high standard of skill. If he loses, and Jackson is convicted, it will be because the sheer number of molestation claims was too much to overcome—it won't be his fault at all.

I think the problem, generally, may be that celebrities confuse choosing a criminal lawyer with choosing an agent—something they are good at, but that goes by very different rules. It makes a lot of sense for a celebrity to opt for the same agent as their celebrity friends, since agencies package projects with multiple celebs from the same agency. Not so with lawyers.

Fortunately, criminal trials are not (yet) packaged. Imagine the shoplifting/child molestation trial starring Winona Ryder and Michael Jackson. She wears a see-through dress; he wears pajamas; a number of different demographics are pleased, and the trial tops the box.

You also asked: "Does Jackson's fame increase or decrease his likelihood of conviction relative to: (1) Joe Schmo's likelihood of conviction and/or (2) the truth about whether Michael Jackson actually committed a crime? Which of these norms is more relevant?"

I think the answer to #1 is clear: Jackson's wealth and ability to go to trial with a superb lawyer such as Mesereau makes him less likely to be convicted; that's why Mesereau can charge the big bucks. Joe Schmo would have entered a plea and showed up on Megan's List long ago, if his neighbors hadn't formed a mob and chased him off with torches first.

Granted, the effect of Jackson's wealth is somewhat undercut by your point about the way Jackson's celebrity image can hurt him. But overwhelmingly, the need not to have to plead guilty due to lack of funds (and fear of a terrible court-appointed attorney) is a tremendous plus for Jackson. When a defendant, in effect, must plead guilty, prosecutors have tremendous power irrespective of the strength of their case.

The answer to your second question is perhaps murkier. But I think my last point suggests that we are much more likely to actually learn the truth in a celebrity case, than in a Joe Schmo case. Since Joe Schmo will plead guilty 90% of the time—and have a poor lawyer if he goes to trial—we'll never hear his side of the case. The fact that as a criminal defendant, Joe has no right to take discovery from the other side—a rule of criminal procedure that I think is appalling—makes Schmo's position even worse. If there's evidence clearing Joe in a prosecutor's file, he may never know it. (There's a duty to turn it over, but many prosecutors would fight tooth and nail not to—and remember, only they know it's there.)

But what about the idea that we won't learn the truth because high-powered lawyers will distract us from it and bring irrelevancies into trial to cloud the real issues? I think this happens less than people think.

It certainly happened in the O.J. Simpson trial. If the other evidence had been different, the "n-word" evidence could have shown that Fuhrman would have framed Simpson. But the DNA evidence was incontrovertible—making the "n-word" evidence a distraction. The jury could rightly have refused to consider any of the evidence Fuhrman might have planted. But the DNA evidence simply was not in this category.

But the Simpson case is so very weird, it's an unfortunate paradigm. I think even celebrity cases tend to actually focus on the issue at hand (Did Jackson molest? Did Winona shoplift?) and the presence of a good defense lawyer tends to mean that we hear both sides of the evidence presented quite well.

You also ask, which is more important—truth or likelihood of conviction. I'm a big fan of the "trial is a search for truth" ideal. I dislike the Fifth Amendment: I'd like to see arrestees give a deposition with their lawyer present and not be able to take the Fifth. But a trial is never really a search for truth unless the sides are evenly matched, and unless both have access—through discovery—to each other's evidence. That isn't the way our criminal system works—so maybe likelihood of conviction would be a better focus here.

You mentioned in an earlier post that you're not averse to putting a value on human life, as an economist—and thus plaintiff's lawyers do not seem to want you on their juries. So perhaps I should raise this question: Can we put a value on justice? Is there an economic rationale for spending as little as we do on court-appointed lawyers? And is there an optimal amount for us to spend? And if so, would we optimize toward a view toward crime reduction—or avoiding wrongful conviction? Is it rational/efficient (though obviously unjust) to avoid wrongful conviction of the wealthy especially carefully—as our system, in fact, does?

Kendall: 4/12/05, 09:17 PM
I'm starting to like this "packaged trials" concept. In fact, I'd be willing to bet money that, at this moment, there's someone sitting in a windowless office deep inside CourtTV corporate headquarters blearily reading through decades of case law to find a statute allowing R. Kelly, Martha Stewart, Tracey Gold, and Courtney Love to be tried in the same courtroom simultaneously.

Which brings us to the "efficiency vs. justice" question you raised. I don't want to stray too far from our focus on celebrity, so I'll be brief.

Whether justice has a price in a metaphysical sense is a question I'll leave to the moral philosophers, but there's no doubt that it is priced in an operational sense. That is, we all like due process, but how much due process is "enough"? Due process costs money that can be spent elsewhere—on other forms of justice such as welfare programs, or else simply on goods and services that would make some people happier, and make no one less happy. I think there's no doubt that we've seen a secular trend towards increased investment in the justice system over time, which suggests to me that, as with environmental quality, ethnic tolerance, and other higher-order "goods," wealthier societies demand more "fairness" than poorer ones.

I'm an economist, not a legal theorist, so I will beg off the question of whether we currently have the socially optimal amount of justice or not; but may I humbly suggest that, whatever level of justice we desire, we should choose instruments that achieve that level at the least cost? In the context of celebrity, then, I would ask: is a focus on increasing justice for famous people more productive in forming a fair society than other feasible instruments?

One might answer "no", based on the fact that there just aren't that many celebrities out there, so why expend valuable resources worrying about it. On the other hand, though, famous people are social "leaders" in the sense of setting norms and values, and they serve as symbols for understanding our society and ourselves, so their value may be greater than their numbers. Celebrities are like wedding bands—there's not much to them, usually, but they mean a lot. I don't want to turn into Matt Groening's type of college professor and make too much of movie stars, but I think there's something to this. What's your opinion?

I'd also like to offer an alternative theory on your point about celebrities choosing worse lawyers than other wealthy people. While criminal punishment is clearly a cost to anyone, there's also an upside for many celebrities, namely, free publicity, and famous attorneys add to the media glare. Now, accusations of child molestation aren't going to do anything for Michael Jackson's career, but certainly there is an element of recklessness and sexual machismo that attracts some fans to demand the performances of rock stars and hip-hop artists with long rap sheets. Musicians seem to get in more legal trouble than actors. Is this because actors have to maintain a certain blandness in order to be believable in their next role, while musical artists always "play" the same personality?

Testable hypothesis: Who hires better defense attorneys, actors or musicians?

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Hilden: 4/13/05, 09:06 AM
I think your suggestion that some (usually rap or hip-hop) musicians can actually profit (literally) from brushes with the law is interesting and probably true. Just as a parental warning label increases a CD's profits, so too may arrests or even convictions provide street cred.

But not when the rapper is also on the business side, I think: Another brush with the law would have nothing but downside for P. Diddy and Jay Z's image would similarly be greatly hurt.

And not when the rapper or hip hop artist is extremely talented. Tupac Shakur is an example; even if he hadn't died violently, I still think his association with violence was a mistake, one he was rightly trying to correct. So too with Eminem. His dangerousness seems now to be restricted to the kind of dangerousness the First Amendment protects—a wise business move and a way to protect his artistry and himself, as well as his daughter.

And do musicians have good lawyers? I think P. Diddy's defense attorney—"Don't Worry" Murray Richman—in the nightclub shoot-up was very good. Like Mesereau in the Jackson trial, Richman made his adept cross-examination count.

But at the same time, I think Richman should not have represented P. Diddy's co-defendant, Shyne. Shyne believes there was a conflict of interest—and I think he's probably right. But I think he's very unreasonable to criticize P. Diddy for allowing Richman to call witnesses that helped P. Diddy's defense, but hurt Shyne's.

The one Shyne ought to be criticizing is Richman. As soon as it became clear that P. Diddy would be calling witnesses whose testimony would hurt Shyne, Richman should have withdrawn, so Shyne could have new counsel. Why didn't he? I'm speculating, but I imagine Richman knew P. Diddy would be benefited if Richman continued to represent Shyne, and he was after the great publicity he would—and did—get from a P. Diddy acquittal.

This suggests an ugly dynamic: If the same lawyer represents a big celebrity and a less-famous associate, it may be the less-famous associate who takes the fall, even if the celebrity is more culpable. I don't think this actually happened in the P.Diddy/Shyne trial: The evidence against P.Diddy was very weak and I think he would have been acquitted no matter what; the evidence against Shyne, meanwhile, was stronger and his defense was probably doomed no matter what lawyer he had. But certainly, entourage members should be warned to beware before accepting "free" legal counsel to be shared with a celebrity.

To bring our discussion back to the Jackson trial, what do you think of the prosecution's "kitchen sink" approach—bringing in everything from alleged head-licking to victims who deny they were victimized? To me, it smacks of desperation. It also smacks of entourage mutiny—are celebrities, surrounded even in their own homes by employees, vulnerable to conspiracies by their own people to take them down? And could this be happening to Jackson?

Kendall: 4/13/05, 01:26 PM
Actually, the "kitchen sink" approach has seemed pretty effective to me. The prosecution is trying to paint a picture of consistency; they want the jurors to say, "could all these guys be lying?" Even the witnesses who seem to change their testimony on the stand I think are not necessarily a loss. Michael Jackson's courtroom demeanor has sent a strong signal that he's afraid of this trial, and we know he surrounds himself with some shady characters (Jackson family members, Nation of Islam guys, etc.). If I were in the jury, I'd be looking around for Pentangeli's brother from Sicily in the back of the room.

As with a star's entourage, corporate CEOs, police officers, professors, and many others types of employee all have opportunities to profit from sabotaging their employers, especially near the end of their careers. One of the ways employers keep this from happening is by offering pension plans or other means of deferred compensation that the employee forgoes if he chooses sabotage. If Michael Jackson's employees are choosing to rat him out, truthfully or not, it must be because they perceive their future earnings in his employ as low relative to the money National Enquirer is offering today.

So I'd turn the question around and ask you: Since celebrities are usually so rich, can they get away with anything by just paying off the witnesses? Is it because of Michael Jackson's widely reported financial problems that he's in so much trouble? Are witnesses (for either side), in general, more or less believable in cases with wealthy and/or famous defendants?

Also, I agree with you that there's such a thing as too much criminal behavior for anyone, celebrity or not. Like any productive factor, there's diminishing marginal product to "street cred," and at the same time, obviously, the potential for serious jail time increases as one's rap sheet grows longer.

But you also seem to imply that the most talented celebrities are harmed more by crime than others, as in the cases of Tupac and Eminem. Now, I am totally unqualified to rank rappers by talent level, but I can more believably (and statistically) tell you who the most talented basketball players are. In some recent research, I found that it is the most talented NBA players who engage in the worst on-court behavior, as measured by technical fouls per minute played, even holding constant an array of other factors, such as their salaries. It's the Dennis Rodmans and Charles Barkleys who act the worst, not the third-string guys at the end of the bench.

In general, whether in sports, music, or film, you're right that the possibility of jail or death resulting from misbehavior is a bigger risk for the most talented people, but I think they still engage in more misbehavior because they are simply irreplaceable. If you want to hear "Hey Jude", there's no worthy replacement for Sir Paul, and if you want to have a shot at an Oscar, there's not that many alternatives to Russell Crowe, and if you want to see a guy hit more than 70 home runs, who else can do it but Barry Bonds?

Michael Jackson may well be the most talented entertainer to ever walk the earth, so by this theory, it doesn't surprise me that he's also one of the most eccentric. If I acted like he did, Clemson University could easily replace me with an equally smart professor, but there's no other Michael Jackson out there to replace him, so fans just have to put up with his weirdness. As I tell my students: If you can make yourself irreplaceable to your employer or customer, you can get away with anything!

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Hilden: 4/14/05, 09:08 AM
Your suggestion that Michael Jackson would be in a better situation if he were still as big a star as he once was is very interesting. Offhand, I might have thought the bigger stars would be the top targets. But on reflection, I think you are right that it's the downslide that draws employee misbehavior. When stars near bankruptcy, I bet they, as often as not, have a helping hand in actually getting there.

When a star is at his or her peak, top agents and managers are fighting to represent them, and they should be able to get top security, personal assistants, and so on. In other words, they should be able to surround themselves with a praetorian guard of ambitious, talented people. And generally, it seems that they do.

But those people have their own goals and careers, and they may peel off as a celebrity sinks—especially if the celebrity, like Jackson, seems disinclined to listen to good advice that could help his career. I don't think any good publicist would have allowed Jackson to, say, accuse top record honcho Tommy Mottola of racism. If he had any good advisors left, someone begged him not to do this, and was ignored.

There is definitely some sense here, I think, of the vultures circling. It seems Neverland probably won't remain in Jackson's hands, and Neverland employees may have seen that day coming long ago.

You mention your intriguing finding that the top basketball players misbehave most. I wonder if there is a component of it that is performative—that they believe, subconsciously perhaps, that acting out will help their career. Certainly, Rodman is an attention-seeker. Yet at the same time, he seems to be a free spirit—unconcerned with what others think. He refuses, for instance, to fear fans' possible homophobia. I wonder if psychologically, his misbehavior reasserted his independence.

In any case, I agree that he must have derived utility from it—and could only get away with it due to stardom. There's a saying that "Everyone becomes an a-hole during their first year of fame." Maybe that's when they have the most capital to spend?

Perhaps this would be a good time to discuss Jackson's best strategy: How can he win this trial? And if he does win it, how should he put his life back together?

Kendall: 4/14/05, 02:06 PM
I think Mesereau's got his work cut out for him.

An investment that pays $1.00 if Michael Jackson is convicted of at least one count of molestation is selling for $0.63 as of this morning. A similar investment that pays off if Jackson is convicted of intoxicating a minor is selling for $0.65. If you believe that these numbers roughly show the market's estimated probabilities of each event (see here for an alternate interpretation), this implies pretty strong odds against Jackson walking out of this trial a totally free man. By comparison, a similar contract that pays off if Hillary Clinton is the 2008 Democratic nominee—an event many people think is highly likely—is selling for only $0.43.

So I think we should probably handicap our expectations about Jackson's future, at least a little. That said, there are still a lot of opportunities for the defense to beat those expectations. At this point, the prosecution has established pretty clearly that Michael Jackson is a bit of a pervert, regardless of the believability of the accuser and his mother. But there are a lot of people interested in kinky
things
who don't do any harm to society and don't deserve legal sanction. The question in my mind is: Has Michael Jackson's behavior materially harmed the children he's been around in a significant way? If I were on the defense side of the table, I'd be crafting a strategy that stated, in substance: "Sure, Michael Jackson has a few dirty thoughts, but the evidence that he's acted on any of them in any serious way is very weak, while the evidence that he is truly a major advocate for children's causes is very strong. If you convict, the world will more likely than not be a worse place." If I were on the jury and were convinced of this, I might still vote to convict, but probably only on the least serious charges.

As to Michael Jackson's post-trial life (assuming it doesn't involve striped pajamas, of course), the first-best outcome would naturally be a great comeback—recording another Thriller-quality album. He doesn't seem to have that in him, though, so I don't hold out high hopes. Despite his apparent liquidity crunch, he clearly has enough assets to provide himself with a comfortable lifestyle for the rest of his natural life, so just fading into obscurity is another possibility. However, voluntary retirement seems to be difficult for those who've seen the top of the world. It happens (Greta Garbo, Ted Williams, Roy Rogers), but it's rare. Philanthropy is a natural for many past-prime stars, but in this case, Michael Jackson might be seen as a liability by many organizations.

So if I were a trusted Jackson advisor, I'd be looking for the kind of behind-the-scenes business or investment opportunities that are surely available, jobs that could challenge him and allow him to contribute to the world without making a ghastly farce out of himself. Could he be a record company talent scout? How about a central California real estate investor? A choreographer for a younger pop star, even? One might laugh at some of these possibilities, but who would've guessed during his career that Jackie Robinson would become vice-president for a restaurant chain? Or that Sonny Bono would've gone into politics? Second careers keep celebrities' brilliant minds focused and out of the trouble that idle hands with loads of money can find themselves in. Michael Jackson is capable of doing more than sitting around with his chimpanzee, surfing dirty websites, and making prank calls.

But I'm eager to hear your take: If you were leading the defense tomorrow, what options would you be exploring? And, more generally, what lessons can other attorneys with celebrity defendants learn from what's transpired so far in the trial?

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Hilden: 4/15/05, 08:01 AM
If only Michael Jackson had advisors as adept as you, he might be less desperate. I think the idea of his advising young would-be stars is a brilliant one. He ought to be an American Idol guest judge, not a possible convict. His gentleness and sensitivity would make him a good fit.

I am sorry to hear that the market estimates Jackson's chances as poor. And I'm hoping that even if you consider my book "kinky" (the French deem it literature, I swear; there, I'm published by the literary house Actes Sud, next to Russell Banks and Paul Auster) you also consider me in the class of those "who don't do any harm to society and don't deserve legal sanction."

You ask what I'd do if suddenly put in charge of the Jackson defense. Unfortunately, I am not sure what can be done, beyond what Mesereau has done already. The defense is in trouble, but it's not due to poor strategy, but to poor circumstances. Here are the two major reasons why I think so:

(1) I think the judge's decision to let testimony from supposed other witnesses of molestation was a bad one—but not Mesereau's fault; he made all the right arguments. Certainly, it's an issue for appellate review. But winning on appeal will be very hard. California law specifically allows rulings like this judge's—and while I think that law violates constitutional due process, I imagine that argument has been tried before and has failed. Appellate courts don't like to upset trial courts' calls about the admission of particular items of evidence. If I were Mesereau, I'd call in Alan Dershowitz on appeal. He's done miracles before along these lines—such as in the von Bulow case.

(2) Ordinarily, as a criminal defense attorney, if things went against you—such as this call on admitting evidence—and they were hurting your case, you might consider reopening plea negotiations with the D.A.. You'd do it either now, or while the appeal is pending post-conviction, and hopefully when the D.A. knows it'll be Dershowitz doing the appeal.

But not here—the D.A. has a vendetta against Jackson, and he's not going to accept anything but an exceptionally harsh plea. Also, lots of Cali's taxpayer money (hey, that's my money! I want it back...) has already been spent to procure this conviction. So if the D.A. offers a less harsh plea now (a psychological impossibility for Sneddon, I think), he'd have to explain why he ever went to trial on this in the first place, rather than just working out some kind of plea. Sneddon needs this conviction. Jackson needs an acquittal, or else a very modest plea. That's an impasse if I ever saw one.

Jackson is in part at fault for creating this situation by encouraging this vendetta by taunting Sneddon in a past song; he should have held his fire. But Sneddon is deeply at fault for allowing personal emotion to interfere with his prosecutorial duties.

You suggest that as Jackson's attorney, you'd admit "dirty thoughts" on his part—but I just don't think that you can even flirt with that taboo, so I'd have to respectfully disagree. The emotion that causes molesters to be murdered in prison, is going to be inside the jury too.

So I think you have to urge jurors that Jackson is a "Peter Pan" who never grew up and sort of is himself a frozen child, psychologically. He doesn't know how to behave, and behaves childishly—with sleepovers and the like. Like a child's, his behavior is often inappropriate, to say the least, but like a child, he is innocent and not as culpable. In a way, his defense, I think, should be a child's defense: He's learned his behavior was inappropriate and he won't do it again. He loves his own kids and wants to help other people's. Now he'll try to do so in a more appropriate way—for instance, through charity.

Somehow, in your summation, I think you must remind jurors that sending Jackson to jail leaves his kids, in effect, orphans. And no one has ever charged that he abused them sexually—which plays into the idea that psychologically, he is more interested in being one of the Lost Boys than in abusing little children.

I'm not sure if all this can work, but I don't see another way to go.

You ask, also, if there are lessons for other celebrity defendants. One is simple: Don't criticize your prosecutor publicly. Ever. And don't let your "people" do it. It won't help you. And it may effectively rule out the option of a palatable plea bargain. If you must criticize, target the evidence or theories, not the person who is prosecuting you.

Let me pose this question to you: If you were a juror, would you convict Jackson? And even if not, would you convict him in a civil case—where the question is whether it's more likely than not that he did what is alleged? My own answer to both questions is no.

Kendall: 4/15/05, 06:13 PM
Would I convict Michael Jackson? Obviously, I'm not in the courtroom, so my thoughts are colored by the editorial choices behind the news reports I read and the performances of the re-enactors on the E! network. A lot might depend on the facial expressions, verbal tone, and body language that those of us on the outside aren't privy to, as well as what I thought my fellow jurors believed. Nevertheless, on principle, my answer at this point, before seeing what the defense has up its sleeve, would be yes.

On "justice" grounds, my beliefs are, with high probability, that Jackson broke the law, so on those grounds, he does "deserve" punishment. But at the same time, I'm looking to the defense to tell me what great harm Michael Jackson has done. Is there deep psychological strife in the mind of the accuser? Has the family been broken up (more than it was already) because of something Michael Jackson did? Maybe so, but I haven't been convinced of this yet. Obviously, these issues relating to degree of harm are more relevant to a civil trial, but they also matter in the criminal proceedings, since there are multiple charges and the jury can elect to supply a guilty verdict on any or all of them.

But I'm really more of a pragmatist, so I'm looking to answer three basic questions: (1) What harm would accrue to Michael Jackson and his family after a conviction? (2) What's the likelihood of recidivism in Michael Jackson's behavior? and (3) What would be the future deterrent effect on others of convicting Michael Jackson now? You answered question (1) in your post, mentioning the significant potential for harm to Jackson's real children, and I largely agree. On question (2), relating to Jackson's potential for recidivism, I think there are very serious unanswered questions for the defense, since the prosecution has established that Jackson's behavior hasn't improved much since his settlement in the 1993 case. On question (3), relating to deterrence, even if I was sympathetic to Michael Jackson on the other two questions (and to some extent I am), a not-guilty verdict or light sentence might embolden others with child-molesting tendencies.

Essentially, the jury is setting expectations about the future "price," denominated in jail time, for child molestation, and as any economist will tell you, a fall in price leads to an increase in quantity. So the question is one of elasticity—how big of an increase in the quantity of molested children would result from a diminishment in the punishment for molestation? I don't know of any research that looks specifically at child molestation (probably because reliable data on these crimes are not readily available), but there is evidence that violent crime rates react significantly to increases in both the probability and the severity of punishment, so it wouldn't surprise me if child molestation followed the same pattern.

It is these latter two issues, recidivism and deterrence, that cause me to lean toward conviction. But, as I said on the first day of our conversation, I'm more than willing to admit that juries aren't always totally rational (ahem, cough-cough, O.J., cough).

Well, Julie, it's been fun and a real learning experience for me this week. I am sure we'll have many more opportunities to think about fame and the law in the years to come. See you at the next big Hollywood trial!

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