terça-feira, junho 21, 2005

Don't be in any doubt, the Jackson jury was right

US juries have a power British juries don’t – they can explain their decisions, says leading lawyer Alan Dershowitz

Whenever a jury renders a controversial verdict in a high profile case, the legal system becomes the object of scrutiny and often attack. Not surprisingly, the California jury verdict unanimously acquitting the pop singer Michael Jackson of child molestation and related charges has generated a debate about the fairness and accuracy of juries, especially in cases involving celebrities.

Marsha Clark, chief prosecutor in the O J Simpson case, railed against the Jackson jury, as she had against the Simpson jury, claiming that celebrities get special consideration from sycophantic jurors eager to please their pop star heroes. She was joined by many prosecutors and victims’ rights advocates. On the other side were lawyers who have represented celebrities, arguing that jurors hold celebrities to a higher standard and are eager to bring them down to their level.

In my experience, and I have represented dozens of well known clients, ranging from Mike Tyson to John Lennon to Claus von Bulow to Mia Farrow, celebrity is a mixed blessing in a criminal case. At the beginning of a case, when the prosecutor has to exercise discretion about whether to bring charges, celebrity is a major negative: it is much harder for a prosecutor to decline prosecution in a case involving a well known defendant, since dismissal will be viewed as special consideration.

It is far easier to leave cases to the jury and blame them for letting the defendant go, if the jury decides to acquit. This may explain — at least in part — why celebrities are acquitted more often by juries: because they are prosecuted in weaker cases in which ordinary Joes would never be charged, and weaker cases generally produce more acquittals.

But that is certainly not the only reason why celebrities fare better in front of juries than do other defendants. A successful defence requires considerable resources. Good lawyers are expensive. Stars cannot always buy justice but their money helps to level the playing field against prosecutors who have almost unlimited resources.

Celebrity by itself may also have an impact on jury verdicts, but it is more nuanced than you might think. Sometimes a positive image hurts, as it did with Martha Stewart, from whom perfection was expected because perfection was what she was selling.

In Jackson’s case, his rather negative public image may actually have helped him. Everyone knew he was weird and that he had unusual attitudes — to say the least — towards children. Thus, when the prosecution introduced Martin Bashir’s film, in which Jackson acknowledged sharing his bed with children, this revelation produced less of a shock than it would have with regard to an unknown 46- year-old man.

It may have been easier for the jury to separate out the specific charges against Jackson from the general dirt being thrown at him by the prosecution, since they were familiar with much of the dirt. A savvy lawyer knows how to use a client’s brand of celebrity to his advantage. Jackson’s lawyer did that perfectly in this case, portraying his unusual client as an easy target for an extortion plot.

In my opinion the jury in the Jackson case came to the correct conclusion. This does not mean that Jackson was necessarily innocent of the charges. A jury is not supposed to decide whether it was more likely that he did or didn’t do it. Instead it is supposed to resolve all reasonable doubts in favour of the defendant.

Although jurors don’t necessarily think in probabilities, if a given juror concluded that it was 75% likely that Jackson molested the child and only 25% likely that he did not, the correct verdict would be acquittal, since proof beyond a reasonable doubt requires more than a 75% likelihood.

Jurors are not scientists. They apply the principle that it is better for 10 guilty defendants to go free than for one innocent defendant to be convicted. This means that the jury may be doing its job when it frees a possibly, even probably, guilty defendant. But it is not doing its job when it convicts a possibly innocent person.

British viewers may have been surprised to see members of the Jackson jury talking publicly about their discussions and their doubts about his innocence immediately after the trial.

The jurors gave their own press conference. “I feel that Michael Jackson probably has molested boys,” said 62-year-old Raymond Hultman. “I cannot believe that this man could sleep in the same bedroom (as a young boy) for 365 straight days and not do something more than just watch television and eat popcorn. But that doesn’t make him guilty of the charges that were presented in this case and that’s where we had to make our decision.”

Eleanor Cook, a 79-year-old grandmother, said: “We had our suspicions but we couldn’t judge on that because it wasn’t what we were there to do.”

You never hear British jurors giving such accounts of how they came to their decisions as they are not allowed to discuss their deliberations. I think that’s a shame. Knowing how people came to their conclusions makes justice that much more transparent.

But American juries are much more powerful than their British counterparts in a number of ways. Here in America the jury serves as a check on the excessive zeal and careerism of prosecutors, who are elected and can therefore be considered politicians. Judges, too, are elected in many parts of the United States, including California, and they are sometimes reluctant to render unpopular verdicts.

Jurors are not concerned about the impact of an unpopular verdict on their careers. Their only job is to render objective justice in the specific case before them.

In Britain, as neither prosecutors nor judges are elected, they tend to be more professional and less political. So the jury is not nearly as important as a check on the ambitions of prosecutors and judges. A British barrister once told me that British jurors are “12 chairs moved about by the judge”.

The checking function performed by American juries is particularly important in child molestation cases because the criminal justice system is notoriously error-prone in prosecutions involving child witnesses. Many experts believe that on both sides of the Atlantic there are more guilty defendants acquitted (or not prosecuted) and more innocent defendants convicted (and hence falsely prosecuted) in child molestation cases than in any other category.

It is difficult to prosecute because the crime is committed in private, often by trusted adults, and is frequently not reported by the young victim or, if reported, is disbelieved. But there are also significant motives for falsely accusing people of child abuse, such as financial (in divorce, child custody and extortion situations) and emotional (revenge) considerations.

The jury stands as the final barrier against witch hunts growing out of the public hysteria over child molestation. It is an imperfect and cumbersome barrier that sometimes crumbles under public pressure. But I would say about trial by jury what Churchill said about democracy: it is the worst system, except for all the others that have been tried over time.

Alan Dershowitz is a professor at Harvard Law School and author of the book Rights from Wrongs — A Secular Theory of the Origins of Rights