Spectacle of the Decade

Looking at the Michael Jackson trial brings one ironic thought to my mind: can it really be ten years since OJ was acquitted? Ten years - and a large portion of the American public (or at least the media) still hasn't gotten over it. The case has been referred to as one of jury nullification, yet the record shows that the incompetence of the prosecution (who were apparently more interested in grandstanding for the cameras than in winning their case), and by the judge may have been responsible for the outcome. Simply put, the case dragged on too long, and the civil servants on the prosecution team were thoroughly out-classed, out-maneuvered, and out-lawyered by the defense team. The Judge did nothing to level the playing field. Marcia Clark and Chris Darden were the best friends O.J. Simpson ever had.

So the O.J. case has wrongly been decried as one of jury nullification. But what is worse is that the media hasn't learned anything in the meantime. They still think of trial by jury as a popularity contest.

Now, ten years later, and another black celebrity is in the dock: this time, one from the A-list. Yes, it's the king of pop himself! Michael Jackson is charged with four counts of committing a lewd act on a minor, one count of an attempted lewd act, one count of conspiracy involving child abduction, false imprisonment and extortion, and four counts of administering alcohol for the purpose of committing child molestation.

Yet what, according to Tim Molloy of the Associated Press, will decide the case? Whether Michael Jackson or the child's mother is "weirder." The concept that the jury could believe Michael Jackson likely IS guilty, but still have room for reasonble doubt, just gets left in the dust. Of course, with such media reporting (which is either irresponsible or ignorant) feeding into the psyche of the jury pool, how can we expect jurors to understand and follow the concept of "proof beyond a reasonable doubt"?

Well, the academic literature shows that juries fail to comprehend the concept of proof beyond a reasonable doubt. Prof. Lawrence M. Solan has written that "empirical studies and linguistic analysis strongly suggest that it is more difficult to establish proof by clear and convincing evidence than it is to establish proof beyond a reasonable doubt, even though our system regards the former as reflecting a lighter burden." This is because, according to Prof. Solan, clear and convincing evidence instructions "focus the jury on the government's burden, while [proof beyond a reasonable doubt instructions] focus the jury on the defendant's ability to come up with alternative explanations." See Lawrence M. Solan, Refocusing the Burden of Proof in Criminal Cases: Some Doubt About Reasonable Doubt, 78 Tex.L.Rev. 105 (1999).

We still just don't get it: it doesn't matter who is weirder. It doesn't matter who is more incredible. What matters is only whether the incriminating evidence is so credible that it leaves no room for rational dispute. If not, no matter how weird Michael Jackson may be, he must be acquitted.