Jackson trial opens amid access, records issues

By The Associated Press
01.31.05

SANTA MARIA, Calif. — Michael Jackson's young accuser will have to testify against the pop star in open court when he takes the stand in the singer's child-molestation trial.

Superior Court Judge Rodney S. Melville rejected a request from prosecutors on Jan. 28 that the courtroom be cleared of reporters and the public when the boy, 15, and his brother, 14, testify. Prosecutors said they wanted the testimony closed to protect the children from intense news coverage, proposing that reporters listen through an audio feed.

The defense and a coalition of news organizations, including the Associated Press, had argued that the testimony should be open.

Jackson attorney Thomas Mesereau Jr. said the children did not need their identities protected because they had previously testified before a grand jury and appeared in a British documentary about Jackson that aired on ABC-TV in 2003.

Jackson, 46, has pleaded not guilty to charges of molesting a 13-year-old boy and plying him with alcohol. The boy is now 15.

Jury selection begins today and could last as long as a month. Lawyers said the trial could take five more months.

The judge said on Jan. 28 that once a jury was seated, he would release the indictment, grand jury transcripts and possibly some police reports.

Melville also said on Jan. 28 that jurors would be allowed to see the British documentary, which contains footage of Jackson and his accuser holding hands and Jackson defending his practice of sharing his bed with children.

Melville refused to bar prosecutors from calling Martin Bashir, the journalist who did the documentary, as a witness.

Bashir's lawyer, Theodore Boutrous Jr., argued that Bashir was protected by the First Amendment and California's shield law from having to testify about the documentary, "Living With Michael Jackson."

Boutrous also represents the Associated Press and other media in efforts to broaden media access.

As the Jackson trial begins this week, participants and observers are sharply divided over whether Melville has imposed too much secrecy — or not enough secrecy because of news media leaks.

Graphic details of the testimony that led a grand jury to indict the entertainer leaked in mid-January, months later than the same information might have become public in a less sensational case. Some legal experts say the exceptional secrecy imposed Melville to try to ensure a fair trial may have backfired by fueling demand for the material.

To the dismay of news reporters and advocates of the public's right to know, Melville sealed many documents in the case, including dozens of search warrants and even portions of the indictment, items that normally would have been made public even in high-profile trials. Materials that were released had been heavily censored.

Melville also had refused to release the grand jury transcript, which normally is allowed in California, but extensive excerpts were posted on a Web site and a full report on the 1,900 pages of testimony aired on ABC's "Primetime Live." The judge has since said he would release the transcripts and other material once a jury is seated.

The source of the leaks remains the subject of speculation. Jackson's attorney was quick to condemn the leak.

Court employees can be tempted by money or the love of telling juicy details, and even if TV news directors and newspaper editors choose not to use the documents a keystroke can release them worldwide on the Internet, said Justin Brooks, a professor at the California Western School of Law in San Diego.

"In any high-profile case, it's becoming nearly impossible to get a totally fair trial," Brooks said.

Advocates for press access said it would have been better to have an official release so the public would know the source and accuracy of the information.

Courts have safeguards against publicity influencing potential jurors, such as questioning them intensely about what they have heard, said University of Santa Clara law professor Gerald Uelman. He said the leaks might not have all that much effect.

"We're learning that jurors are not idiots who believe everything they see in the media," said Uelman, who was part of O.J. Simpson's defense team.

"What the media does with this material in advance of the trial, I think, seldom illuminates any issues and ultimately it will make the trial of the case more difficult," Uelman added.

Jackson attorney Mesereau, whose ability to comment is restricted by a gag order, got court approval to issue a statement noting that the grand jury transcript basically told only the prosecution's side of the story.

"By law, no judge or defense lawyer was allowed to be present in the grand jury room," Mesereau said. "Furthermore, the defense had no opportunity to call its own witnesses to refute or criticize this one-sided proceeding."

The judge also permitted Jackson to comment on the release. Fox News confirmed that Jackson taped an interview, unrelated to the trial, with talk-show host Geraldo Rivera during which he read a statement about the leaks. The interview has not yet been broadcast.

The prosecution has not commented on the leaks but Santa Barbara County sheriff's investigators have denied they were the source and said they were investigating them as a violation of law.

Jeffrey W. Schneider, vice president of ABC News, issued a statement supporting the broadcast of the Jackson transcript excerpts, saying producers verified their authenticity.

"We reviewed and reported on this testimony because of its inherent news value. Our job is to report the facts, in a balanced manner and in proper context," he said.

Melville also ruled on Jan. 28 that dozens of adult books, magazines and DVDs seized at Jackson's Neverland ranch — one with the fingerprints of Jackson and the accuser — can be used as evidence.

However, the judge said the prosecution could not refer to the material as pornography, obscenity or erotic. Instead, the words "adult" or "sexually explicit" can be used, he said.