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Thomas Mesereau at Harvard Law School - Wednesday, 30 November 2005

Michael Jackson's defense attorney, Thomas Mesereau Jr., who was named one of Barbara Walters' "10 Most Fascination People of 2005" took part in a panel on race and the Jackson trial at Harvard Law School yesterday, November 29th, 2005.

Mesereau previously served as the defense attorney for actor Robert Blake, and accepted the Jackson case after its first preliminary hearing, explained his reasons for not raising race as a factor in the defense cause because he felt that any use of race, would only backfire on the defense.

He compared his treatment of racial issues in the Jackson case to a case he took, involving a black city counselor from Compton, CA. In this case he used racial arguments, because the evidence strongly indicated that race played a major role in the situation.

Mesereau also attacked the media coverage of trials in general, complaining that the media routinely predicts the wrong verdict, and has little regard for the actual issues of the trial.

Source: The Harvard Crimson / MJJForum

Below is the partial transcript of Mr. Mesereau's comments. Thank You Phatfan for providing the transcripts.


Well thank you very much. I'm very honored and privileged to be invited to speak to the law school. I wanna thank Professor Ogletree and the Institute and the law school and everyone associated with it. I'm really, really touched to be here and I've been really, really looking forward to it. The Institute as I understand it deals with issues of race and justice so I'd like to begin by talking about how those two factors played into the Michael Jackson case and what they mean for defense lawyers in general.

There are two things I think a defense lawyer has to do when it comes to race in a criminal case. Number one: what is the significance of race, if any, in a case and number two, what do you do with it? And there are situations where you might decide there clearly is an issue of racial injustice, racism, bigotry, favoritism, whatever it is based on skin color, ethnicity, or it could be religion---whatever it is. And if you identify that problem as a real problem in the case, the next question is to properly defend your client and to secure your client's freedom, what do you do with it. Do you raise it at all, do you raise it before trial, do you raise it during the trial? What you do with it, practically speaking, to save your client because saving your client is the number one responsibility you have, in my opinion.

Now if you look at American history, particular in the history of our justice system and how race plays a role in it there have been cases where the defense lawyer in conjunction with the client decided that the case was primarily a political case where the number one goal was to raise and expose racism, to raise and expose bigotry. And if that's something the lawyer and client decided to do, that's something that might be the primary objective. But what I'm talking about is where the primary objective is your client's freedom, your client's reputation and saving your client's life.

For the sake of members who want only the comments regarding the Jackson case, I left his comments on the first two out of the transcript.

Regarding the Michael Jackson Trial

"..Now the Michael Jackson case. If you listen to the media in the Michael Jackson case you would say to yourself that this community where the case was tried in Santa Maria, the city of Santa Maria and Santa Barbara County, California, which is north of Los Angeles, between Los Angeles and San Francisco-if you listen to the media, you would have to conclude that this jury was composed of white rednecks who were ready to string up Michael Jackson without a trial. That's what you'd have to conclude. And it was absolutely false. It was absolutely false.

This was a community where Michael Jackson chose to live. There were very few African-Americans in the community. It was primarily White and Latino and it's known to be a very conservative community-white collar, conservative-but also with a strong Libertarian streak. And even the prosecution before the trial began, made a motion in limine that we not be allowed to refer to them as "the government" in our defense. And that was denied and as you can imagine I periodically pointed at the government prosecutors in my (inaudible). Well, I got up there early and I had never tried a case in San Bernadino County (I think he meant Santa Barbara County) and I'd put my jeans on and just hang out in some bars and restaurants-nothing fancy, usually by myself to see what would happen. And invariably, someone would figure out who I was because it was a big case in that community and they would start talking to me. And what I discovered, at least, in terms of my limited, you know, experiences at that store which were usually mid-afternoon, early evening was that Michael Jackson was extremely popular in that community. White people, Latino people, young, middle-aged, old, children loved Michael.

He was their celebrity. He could have lived anywhere in the world. He had chosen their community. He had done kinds things for people in that community. When the Air Force wanted to use Neverland to do a film, he said "Come on in." He had waiting lists of kids, primarily disadvantaged kids who wanted to come to Neverland for a day with the amusement park and with the zoo. And even though not everybody liked him, a lot of people did.

Now I had a jury consultant and she did what jury consultants always do: and that is, they conduct surveys and focus groups, and they obtain data and they correlate data. They'll get your age and your occupation and your political affiliation, your religion, your race and they will associate it with various attitudinal issues. And they'll come up with a typical profile of what a pro-prosecution juror would be and what a pro-defense juror would be. And having listened to that data, which the prosecution had as well, probably wouldn't have done as well because, among other things, that data said that women with kids are probably your worst jurors if it's a child molestation case. Mothers are-wanna protect their children and this is the worst kind of thing you can do. And frankly, women with kids are what I wanted because jury surveys, hard data, this kind of analysis is no substitute for your intuition, for your feelings about people, for your understanding about who your client is, who might be open to understanding your client, for your intuitions and instincts about who might look at the prosecution witnesses and see through them if you really think represent the truth and I'm convinced that we did. And I said to myself race is not going to be an issue in this case.

Now Michael and his family were concerned about no African-Americans on the jury. We had one African-American alternate who never made it to the actual panel. I was not concerned. The more I learned about the community, the more I learned about my case, the more I learned about the client, the more I sensed what I thought about this court house and what had happened in the past in this court house, the more I really thought we're really gonna get a fair shake.

And I'll tell you something else. As I said before, I'd never tried a case in Santa Barbara County but I learned that there was something of an attitudinal split between the North County and the South County. As I said before, Santa Maria is in the North County which is primarily blue-collar, working class, very conservative. The South County, thought to be more affluent and more liberal. You have the University of California at Santa Barbara in the South. You have the District Attorney's principle office in the South. There have been two bills I discovered introduced in the State legislature trying to get the North to secede from the South. And I said to myself, "You know, this is Michael's community. He chose it. People like him. Let's position Michael in his community against this vindictive DA from the South. And I think it was effective because I also learned that most people in that community thought the DA was on a vendetta to get Michael Jackson.

He had convened a grand jury in the early 90s to try and get an indictment and he had failed. The grand jury met for approximately six months and would not charge Michael Jackson with anything. And I have since spoken to someone who was on that grand jury quite recently from Los Angeles. She was on a Los Angeles grand jury that was convened at the same time and they had real problems with these accusations, and real problems with the sense that people were trying to get money out of Michael Jackson by generating these charges.

So he failed to get an indictment in the early 90s. In the mid-90s, the district attorney flew to Australia and Canada-they're the only countries that I know that he went to-he may have gone to others-looking for victims of Michael Jackson. He failed. They told him to get lost. He didn't do anything to us. He had a website in the Sheriff's Department looking for information on Michael Jackson and finally got the case that you know about because it was tried this year as Professor Ogletree said ten felony counts not guilty, four lesser-included misdemeanor counts not guilty. They didn't even hang him on misdemeanors. The case, in my opinion, was a total fraud. It was an effort by unscrupulous prosecutors and police to do anything they could and to say anything they could say to try and get a conviction on a single count and it was absolutely unjust what was done to Michael Jackson this year.

But, my conclusion on the issue of race-I told people who I have the ability to talk to about the issue the following: I said to African-American people Michael Jackson is Black. He is Black. If you ask him what his race is, he's Black. But you know to a lot of White people, Michael Jackson transcends race. He brings people together. We played tapes to the jury where he talked about why he loves people at all continents, people of all races. He said at one point "I wish I could adopt a child from every continent." He talked about how he disliked racism, disliked bigotry, and I am absolutely convinced that that jury saw Michael Jackson as someone who brings people together, not apart. And I never had a concern about these jurors being fair. I just didn't.

I always thought this jury would never align with the DA because it was their county. I never thought so. I never thought this jury would penalize Michael Jackson because he has long hair, because he has a serious skin condition which I have witnessed. It's called vitiligo. He has shown me his skin. If you look at his back, you will see brown patches and white patches. It's changing and eating pigment in his skin. He's very embarrassed with that. He chose to put white makeup on his face rather than have these splotches all over his face. That's his choice. I don't think it's a crime to do that. And the media kept portraying him as so weird and so strange and I would say to people, turn on the TV any night and look at people who are stranger than Michael Jackson. He is creative, he dances to his own drummer. On the tape we played to the jury, he said "You know, you like to go to ballgames, I like to sit in my tree and make music." Yes, he's different. Yes, he's a musical genius. Yes, he's had his problems. Yes, he's a human being. And no, he's not a criminal

So these are three examples where you have to first identify whether there was a racial component and do it honestly. And then you had to say to yourself as a defense attorney, "What do I do with it?" And you can't listen to everybody else. And you can't listen to the media. And you can't listen to the scandal mongers. You gotta figure out for yourself based on the facts, the evidence, what you know about your client and the witnesses, what you think is going on. Now, I didn't raise the racial issue. I didn't think he was prosecuted because of his race; I thought he was prosecuted because he was a mega-celebrity. I will say this: the last witness I called was actor/comedian Chris Tucker and Chris Tucker testified that this family who was accusing Michael Jackson was trying to hussle him. They wanted his car. They told him the child had cancer like Michael Jackson was told. He invited them to a day in Las Vegas where they were shooting or filming the film Rush Hour One. They stayed three weeks and billed him for everything. They kept asking him for money and he flew to Miami and he met Michael Jackson at a hotel and he said, "Be careful. Something is wrong." He warned Michael Jackson about this accuser and the family.

On cross-examination, District Attorney Tom Sneddon conducted the cross. And at one point, he showed Chris Tucker a blowup of a photograph of Chris with the accuser and his family at a wedding. And Chris rather humorously said, "I like that picture. You know where I can get it?" And everybody kinda chuckled in the courtroom. The DA looked at him and said, "I'll get it for you if you're a good boy." Now, the African-American community as far as I could tell-I was not watching the media all the time, I was working most of the time-I would take a break and channel surf to see what I could see-didn't pick up on this much. And I was happy because, again, coming back to my defense, my belief in what would work, I didn't wanna raise issues of racism in this case. I looked at this jury, I felt this jury, and I didn't think it would help us.

And I had to take a very difficult and controversial position at the end of the case because of my belief in what was necessary to save my client Michael Jackson. The day the jury got the case, I felt very good. I felt our case had gone in very well and I had told certain people I don't wanna racial issue here. I don't wanna be identified with a racial issue in this community. I don't think it's gonna help us. At the beginning of the case, when I was asked by various people associated with Michael Jackson how I thought things were going, I had been very concerned. And let me sort of explain it this way.

In November 2003, Neverland was raided by 70 sheriffs and I was called-I was driving back from Big (inaudible) to Los Angeles. I had taken a vacation. I was asked if I would fly to Las Vegas to meet Michael Jackson, that he wanted me to represent him. And I thought about it long and hard and I declined because I was getting ready to defend actor Robert Blake in his homicide case which was set for trial in February 2004 and I didn't think I could do justice to both cases. I thought it would just drive both clients crazy if I was not available when they needed me. And Michael's people were quite surprised that I-anybody would say no but I did. When Blake and I had a falling out approximately ten days before the start of his trial in February and I withdrew, I got a call about a month and a half later by Randy Jackson, Michael's brother, whose been a friend of mine for many years. Would I reconsider, would I fly to meet him. I said I would.

I went down and met Michael, flew back, was asked in a short-five or six days will I come back. I said I would and I was retained. But what I had seen before I was retained on TV was of great concern to me. You may recall that first arraignment. I was not his lawyer then. First of all, the Nation of Islam were providing security for Michael and they were very prominent in Santa Maria at that first arraignment. Now, I've worked with Nation of Islam for many years and I still do. And I've agreed to defend their western regional leader if he is charged with assaulting a police officer, which they are threatening to do but haven't done yet. And I am well aware of what Nation of Islam does in the inner city in Los Angeles-the way they fight gang violence, the way they fight drugs, the way they try and teach people responsibility and spirituality. And they do so much in a city which is the gang capital of America to try and stop this violence. And I have worked with Nation of Islam on the Patricia Moore case. They've been great supporters of her. But nevertheless, I did not think having Nation of Islam in a prominent position as Michael's security people in Santa Maria were helping defend. I felt it was separating him more from the community that was going to judge him rather than making him a part of the community he had chosen to live in that would judge him. And I made that very clear. This is not a good way to start. I also had seen his lawyers and advisers in a meeting at the Beverly Hills Hotel, a very posh hotel in Los Angeles. They had a meeting and it was all over the news how all these fat cats who advised Michael Jackson at this hotel assembled to put together a defense. And they used the word "dream team." And I said to myself as I watched the news, "This is wrong. This is not helping Michael in this community. It's separating Michael from this community."

Emphasize that he's one of the people around this courthouse. Don't emphasize that he's separate or bigger or completely different those people because he's not. And I voiced my feelings about that. I looked at it purely in terms of what would help him, not in terms of necessarily what would create a political statement or the appropriate moral statement. I looked at it in terms of how do I save the life of Michael Jackson.

And you may recall, if you follow the case, during the second arraignment after he was indicted when I was his lawyer, you didn't see the Nation of Islam prominent. He has certainly some Muslim security but it wasn't a prominent thing. And there were no more parties at Neverland no more summit--summit meetings in Beverly Hills and things of that sort. It wasn't going to help defend Michael. But at the end of the case, and unfortunately this got some TV coverage, and I'll just be perfectly honest about it, the Reverend Jesse Jackson, who I have a lot of respect for-particularly what he did doing the civil rights movement and what he's done since-did appear and I was upset.

And I issued a press release that nobody's speaking for Michael Jackson or the family, that there's a gag order and we will honor it. And I had a talk with the Rev. Jackson and I explained to him just what I'm explaining to you. There's no upside here to a lot of white people when they see you, they think there's a racial divide or a racial issue that you're coming to expose and to fight against as you should. But it's not gonna help me with my job right now. And he did leave. He was there for a couple days. He understood my goals. He understood my motives. I still have great respect for him but I didn't want him there at that time for reasons I've told you just now.

Now I was asked if, uh, if I wanted Al Sharpton to come out to the community. And I suggested that wouldn't be a good idea either and he completely understood. He didn't think he belonged there either. Um, but you know? It's up to the defense attorney to identify these issues for what they are, even realistically. Don't hide from what they are and don't pretend our society is something it's not and don't pretend the community where you're trying the case is something it's not. Be aware of what it is and adjust your defense accordingly. And that is what I was trying to do. Fortunately, we succeeded. And I absolutely believe justice was done.

I know we have a lot of students here who are studying trial tactics. Um, let me say a couple of things about trial tactics because I did pursue some unorthodox trial tactics in the case for which I was criticized until the verdict. And I'll just summarize them very, very quickly.

A trial is an exercise in people. If you don't understand people, you're not as equipped to try a case as you could be. You don't learn about people in law school. You really don't. In fact, you learn in law school, in my opinion, that everything is an intellectual exercise. And it's not. I think the best trial lawyers understand what happens in their heart, their soul, as much as what happens in their intellect. And if they're gonna communicate with people who didn't go to law school, who didn't go to college, and come from different walks of life-some highly educated, some not-whoever they may be, you have to learn that there's a lot more to human nature than your intellect. And you have to learn what makes people tick. You have to learn who is the kind of person that typically resonates with you as the trial lawyer. You only learn that with experience. And you have to learn about people's intuitions, their instincts, their feel. Everything is not intellectual. Trust me.

On Trial Tactics in the Michael Jackson Case

Finally, on trial tactics, we are taught traditions as trial lawyers. They are passed on from generation to generation and most trial lawyers don't have either the time or interest to put them under a microscope and say to themselves, "Is this gonna work in this case?" They simply do what they were taught to do. And I'll give you an example. In my opening statement in the Michael Jackson case, I did something that heresy to so many criminal defense lawyers. And that is that, as we all know, there's a presumption of innocence in a case. The prosecution has the burden of proving a case beyond a reasonable doubt and the defense doesn't have the burden of proving anything. Okay, that all sounds delightful. What does it mean in a courtroom?

Well here's what I think it means and here's what I thought it meant in the Jackson case. First of all, I think jurors think the lawyers know what the truth is, whether we do or not. Second of all, they wanna know what the truth is. And I believe when a defense attorney gets up in an opening statement and looks at the jury and says, "My client is presumed innocent, they have the burden of proof. You'll have reasonable doubt at the end of this case," I think the typical jury looks at that defense attorney and says, "His client's guilty. He just thinks he can stop them from proving it." That's what I believe.

Walking into the Jackson trial, I fervently believed we had the truth on our side. We had the evidence on our side and we were in the right. And I saw no reason not to flaunt that. I saw no reason not to hit the prosecutors over the head with it. And I got up in my opening statements and I said, "I'm gonna make promises to you, I'm gonna make contracts with you. I'm gonna prove this man's innocent." I never mentioned the burden of proof, I never mentioned reasonable doubt. I had a reason not to do that and that is, I wanted to be the bearer of truth, not them. I did not wanna look like someone who was playing with technicalities. Let them look like it. And I felt we got the momentum right in our opening statement. I felt we never let up and I think that's why he was exonerated to the extent he was.

You're taught cross-examination in law school. You're taught don't ask open-ended questions. Don't ask account questions. Don't ask a 'why' question. You're inviting an avalanche of horribles if you do that. Well, I think you need to start off by following that principle but if you follow that principle your whole career, you'll never be a great cross-examiner. And you can't be a great cross-examiner unless at some point you start taking those risks and taking those chances. You just have to reach a point where your instincts tell you "this is where I can do it and this is where I can't."

Following the Robert Blake preliminary hearing, which was televised for three weeks, some Court TV reporters told me that "We haven't seen someone ask so many open-ended questions as you. But you always seem to make it work in your direction." And it's something I had to work at a long time because I was taught exactly what you're being taught. Now, you can't be afraid of your case, especially if you have the truth with you. Don't be afraid of your case. Don't walk on egg shells like so many defense attorneys do.

Many people said I should have rested when the prosecution rested in the Michael Jackson case because our cross-examination had been so effective. And I'll tell you, if I had rested we would have at least gotten a hang [as in hung jury]. I don't think we would have necessarily gotten a 'not guilty.' And I felt that if we got a hang, it would have made me famous because everybody thought you couldn't win the case. They'd say, "Very good. He hung the jury in this big case just like Leslie Abramson did in the first Menendez trial. Would have been probably great for me. What would it have done for my client?

First of all, the prosecutors would have retried the case, and corrected a lot of the mistakes they made. The judge may have changed some rulings that I thought I could use to our advantage. I didn't think Michael Jackson's life would be saved by resting when they rested. Now when you put on your own case, you run risks because your witnesses are now subject to cross-examination, but again, I felt we had the truth. I felt we had the evidence. So, I did not rest. We put it on-(inaudible) we put on 50 witnesses. They had put on 90 and we got the result we got. Anything you're taught at some point has to be put under a microscope, okay. And you're taught-I remember in law school-I still can't believe this, I still cant believe anybody was teaching me this stuff. They would say, "Just make your points and sum 'em up at the end." That is insanity. People are always making up their mind and they make up their mind quickly. And many human beings are stubborn and cling to whatever conclusions they have reached. You've gotta be selling your message from day one and you've got to do it powerfully. Your questions have to tell your story. You can't just wait to tie it all together at the end. And don't assume that jurors are thinking what you're thinking. You have to really, really hit them over the head with your message. And essentially, you've got to give an opening statement in your opening statement, in your cross-examination, in your direct examination, and in your closing.

There are four times to tell your story. Don't think cross-examination is just there to discredit a witness; it's there to tell your story. And how you discredit a witness depends very much on what you think of that witness because there are some witnesses that you have a feeling they're great actors, they're sociopaths, they're psychopath, whatever they are, but you know that the longer they're up there, the more they're going to expose themselves. And they might expose themselves in a split second but they will do it. And sometimes it helps you to have a witness on for days. Now I was criticized for over-trying my case. One night I was channel surfing and here's somebody-frankly I think it was in Boston-saying "he's over-trying his case." The guy never set foot in the courtroom or saw anything but there I was over-trying my case. Well, I assume what this person meant was why would he have a witness on this long? Because there were witnesses that the prosecution was relying on so I truly concluded, the longer they're up, the worse it's gonna be.

Even if you're talking about small stuff, stuff that doesn't seem consequential, that's not the point. The point is let the jury look into their heart and soul, let them see who this person is, let them see what a liar and a fraud they are. Keep 'em up, keep 'em up, keep 'em up.

Mesereau on the Media

Finally, the media. I've been attacking the media ever since the verdict. There is no one I respect more than a professional journalist who follows a code of ethics, who has professional values. This is the kind of journalist who, when they are reporting on what is happening in a courtroom, never gives you the impression they have a stake in the outcome. If they report on a verdict, you never know what they really personally because they're professionals. We have them in this case. We had Linda Deutch from Associated Press. We had Mike Taibbi from NBC. These are professionals--Dawn Hobbs from the Santa Barbara News-Press.

We also had a bunch of clowns, okay? I call them tabloid reporters. I don't call them journalists. You shouldn't dignify them with that title. People from Court TV, people from some of the cable stations, people who were screaming and yelling when they never set foot in the courtroom, trying to make you think they knew what was going on. Former prosecutors and defense attorneys in New York who never set foot in the courtroom were passionately telling you about the significance or insignificance of a witness or a piece of evidence just to be seen on camera. And the reporting was dreadful, by and large-dreadful.

Keep this in mind. The media's priorities are completely different from the priorities of those who participate in a trial. They are not under oath. They have no responsibility for what happens to the defendant or, if there is a victim, the victim or the people in the family of the victim or the family of a defendant. They are never going to blame themselves for whatever the outcome is. There are very few court orders they have to follow. There may be orders that they have to sit in a certain place or park in a certain place but that's about it. And the only thing they care about is ratings and money. It could be the most boring day in a courtroom and you'll turn on the TV and they'll talk about how dramatic and exciting it was that day (diane demon ). They're trying to capture their audience, they wanna continue to capture their audience. It's all business.

And usually when they predict the outcome in a high-profile case, they are wrong. In Menendez I, they said it would be 'guilty': it was hung. In O.J. Simpson, they said it would be 'guilty' and it was an acquittal. And Robert Blake, they said it was a 'guilty' and it was an acquittal. In Scott Peterson, they said it would be 'not guilty' or a hung and it was guilty and a death verdict. And in Michael Jackson, the overwhelming consensus in the media was it will be a conviction. And it was 14 'not guiltys'.

The cases are won in the courtroom; they are not won outside the courtroom. You have to be concerned with the media, you like good things said about your client but if you spend too much time on what's happening with the media and detract from your preparation to win in front of those 12 jurors, you're probably going to end up very disappointed. The cases are won inside the courtroom. Generally speaking, American juries are very honorable, very hard working and they take their job seriously and, in my opinion, are not affected by the media.

Now there are lawyers out there promoting themselves as jury shapers and media experts and all this and I don't buy it. You want someone who knows how to try a case and focuses on trying that case-nothing else. Yes, yes, If you can get someone out there that will send your message across to try and balance some bad reporting, fine. It's better to have good information about your client than bad. But don't delude yourself into thinking that that wins the case. I think in the Scott Peterson trial, the defense won the battle of spin and I think they lost the courtroom battle. You had all this fabulous reporting about how bad the prosecutors were, how great the defense was, how you had a murder case with no eyewitness, no forensics, blah blah blah. And it turned out to be a very powerful circumstantial case that was won in the courtroom. Now I was not there. I can't tell you how good or bad anybody was. All I can tell you is I saw great press reporting on what was gonna happen in that case and you saw the results

I'd rather be skewered in the press and win the trial. But I think the temptation, the lure is to think that that's where the case is being won. And it's easy for a lawyer to get-to forget who's really most important: not the lawyer and their reputation in the media. It's the client's welfare and the verdict that's most important

I may have talked longer than I should have but thank you very much. (applause)

Last Updated ( Wednesday, 30 November 2005 )

source :mjjforum

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