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Instructions All 98 Pages May Be Slowing Jackson Jury

by: Jamie Stringer , Eugene Young

By JOHN M. BRODER

SANTA MARIA, Calif., June 10 - Jurors have spent five days deliberating criminal charges of child molesting against Michael Jackson and lawyers say the panel may well spend more than two weeks weighing Mr. Jackson's fate, given the length of the three-month trial and the sheer volume of testimony heard.

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

The jury, which consists of eight women and four men, left for a weekend break on Friday afternoon without reaching a verdict. Deliberations are expected to resume Monday.

The instructions, 98 pages of legalese, require the jurors to engage in unnatural 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 Mr. Jackson and one of his accuser. The judge allowed them into evidence not for the truth of the statements contained in them, but only 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 with the accuser in the case, then a 13-year-old cancer survivor, telling a police detective of his molesting at the hands of Mr. Jackson. The boy is reluctant, hesitant and shy, a very different personality than he displayed on the witness stand during trial. The other tape consists of outtakes from the 2003 documentary "Living With Michael Jackson" that included long statements by Mr. Jackson about his innocent love of children and of his lonely childhood.

"There's a high possibility that the case will be decided on the tapes," Ms. 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."

Ms. Levenson also said that the instructions regarding the use of evidence of prior sexual misconduct by Mr. Jackson, even though never charged or prosecuted, may also prove baffling to the jury. 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," Ms. Levenson said. "As a defense lawyer, I would worry that there may be some slopover to the current accusations if they believe the testimony about the earlier cases."

Ms. Levenson said that the California bar is revising the standard criminal jury instructions used in California courtrooms to make them shorter and easier for jurors to understand. The new criminal instructions are to be issued later 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, agreed Shari Seidman Diamond, a law professor at Northwestern University who has studied juries and jury instructions extensively and who reviewed the instructions given in this case.

"Running through these instructions is the use of words that are real words in everyday life that have different legal meanings," she said, citing terms like "attempt" and "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, Ms. Diamond said. "They're quite horrifying, although of course that's not an uncommon situation."

For example, she said, the instructions bury the explanation of what constitutes a reasonable doubt on Page 45 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," Ms. Diamond said.

While not all the instructions are equally important in evaluating those witnesses, she continued, "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, Ms. Diamond said. Instead, judges are worried about whether cases will be reversed because instructions are flawed, she continued. "The judge wants above all to make sure that the instructions are not potentially reversible on appeal."

But it is much easier to parrot the text of a legal opinion or a statute in a jury instruction, however dense and incomprehensible it may be, than 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 Ms. 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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