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Thursday, June 16, 2005

By Ralf Seiffe

OPINION - A California jury’s wholesale acquittal of Michael Jackson has generated all manner of commentary from pundits and celebrity/television lawyers.

Post-verdict analysis centered on speculation that the extraordinary number of charges obliged the state to present a grifter mother that essentially torpedoed the people’s case.

Many experts second-guessed prosecutor Sneddon saying that he should have concentrated only on the child molestation charge. Had he taken that course, the circumstantial evidence would have been enough to convict.

Given Sneddon’s previous tangles with Jackson, others speculated that the large number of charges was evidence of a vendetta between the prosecutor and the defendant. Conviction could have put Jacko away for life and by arraying the 14 charges in ten counts, some believe Sneddon was out to bag the king of pop.

I disagree; the real message in this case is not about its outcome but its advent.

The huge number of charges is more a consequence of the state of the criminal justice system than any grudge between Sneddon and Jackson.

Most criminal prosecutions never reach a jury decision; the more likely path is a plea bargain. Plea bargains trade the uncertainty of winning in court with a guilty plea to reduced charges and much less severe penalties.

These bargains work because they replace a search for justice with an economic decision.

In a typical case, prosecutors may bring an indictment that has a five year prison sentence if found guilty. During the “bargaining” prosecutors inform the defendant that they win 90% of their cases. The defendant, whether he can consciously describe the process or not, makes a calculation that the expected value of going to trial is a four and a half year prison sentence.

The prosecutors then offer a certain, one-year prison term in exchange for a guilty plea to a lesser charge. This superceding charge is often a catch-all “mail fraud” charge. The deal changes the defendant’s situation from trying to prove his innocence to making the economically justifiable decision.

To ensure defendants take their “deals”, prosecutors have every incentive to stack up charges to make the plea bargain look better. The process they use is the grand jury.

The Fifth Amendment requires the state to present criminal charges to a grand jury to place a check and balance on aggressive prosecutors. Unfortunately, grand juries will “indict a ham sandwich” so prosecutors can pile up almost any conceivable crime. In Jackson’s case this included a kidnapping charge supposedly conducted with a Rolls-Royce.

One can watch how this works as the various cases leaching out of Chicago's city hall and Springfield reach their conclusions. Compare the initial charges prosecutors announce with the guilty pleas to single counts of “mail fraud” with which most will end.

These plea bargains have become the most important way that the modern justice system adjudicates cases. It is an efficient and cheap way to clear calendars for prosecutors and judges. For guilty defendants, it is a good deal too because plea bargains result in lighter sentences than would be likely at the conclusion of a jury trial.

But what about an innocent defendant?

When prosecutors lodge multiple charges against any defendant, they know that the economics of the situation will diminish a defendant’s likelihood of proceeding to trial.

An innocent defendant may be willing to risk going to court on a single charge but that decision will change as prosecutors pile up additional charges like they did in the Jackson case. Like a guilty defendant, an innocent one will eventually respond to the deal.

Returning to the Jackson case, prosecutors may have been unwilling to bargain with Jackson but if they were, they had no way of knowing how Jackson would respond. They certainly knew that the more charges they lodged, the better deal they would be able to negotiate. This is a more probable explanation than some vendetta.

The problem with the plea system is that it improves the situation for the guilty while it patently unfair to the innocent defendant.

Jackson had the resources to put Sneddon’s faulty theory and creepy witnesses to a jury and won hands down. But, had he been a normally endowed citizen, he would be in prison today as a consequence of a plea bargain and the government’s warrantee on these far-fetched, but unexamined, witnesses.

This system cheats society because it replaces trial by jury with trial by grand jury.

It forces innocent defendants to plead guilty because that option becomes the best thing to do. States and the federal government have instituted “truth in sentencing” laws to make sure guilty defendants serve terms that are fair and equitable. Perhaps we also need a “truth in indictment’ laws, too.

If Jackson’s a pedophile, he’ll soon be in trouble again.

His acquittal is secondary to the demonstration that a jury is an extraordinarily powerful truth detector but only if one gets in front of a jury.

Jackson’s case shows that the right to a trial by jury is out of the reach of all but the wealthiest defendants. Prosecutors know this and have exchanged regular juries with grand juries and by overcharging, they squeeze defendants into giving up their common law rights.

To the extent that prosecutors game the system, they are no better than the crooks they are sworn to prosecute.

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Ralf Seiffe advises business start-ups and product launches from Chicago, Illinois and is a political analyst and columnist for the Illinois Leader.