THE OPRI OPINION™

Shock Value Litigation

May 2005
by Debra Opri - Attorney and Legal Analyst

The star attraction of the Michael Jackson trial has become what is considered in many circles, an art book. 'THE BOY,' a large pictorial photo essay of young boys, some of which are photographed nude, has become a curious piece of evidence used in an attempt to link Michael Jackson to pedophilia. Like the Pavlov dog test [the dog is trained to salivate when the door holding the food opens, even though the food is not there], every time that large photograph filled book of young boys is waved in front of the courtroom, and on our television screens, every sexually explicit facet of our lurid imagination is reignited. The shock value of that book is enough to taint any person, including the jurors who sit in judgment of Michael Jackson. We are expected, like Pavlov's dog with the opening door, to make an immediate conclusion, in this instance that, whoever owns a book like that must be a pedophile. Can anyone say 'biased'? Do we still think Michael Jackson is getting a fair trial?

It became clear to me when Ron Zonen, a known Santa Barbara District Attorney who successfully prosecuted many sex crimes cases in Santa Barbara County over the years, conducted his cross examination of the defense' first witness. In short, the witness, one of the young boys who had been identified as having been molested by Michael Jackson many years ago, got on the stand and testified that he had never been touched inappropriately or been molested by the defendant. [Under California Evidence Code section 1108, the prior acts of a defendant are allowed to show the propensity for sexual misconduct]

To challenge this witness' testimony, the prosecutor did not raise credibility issues which would question the truthfulness of his testimony. Also, Mr. Zonen did not confront this witness with evidence that this young man may have a motive to make such a statement. As a matter of practice, these are the accepted and customary challenges to witness testimony on cross. In all likelihood, Mr. Zonen probably did not have this type of evidence to challenge this witness with. So, what could he do to nullify this very powerful testimony that prosecution witnesses had lied about an alleged molestation to this young man many years before? Mr. Zonen simply decided to shock his values into accommodation. He challenged the witness as a non-conformist of the Santa Barbara moral values. He showed the witness this picture book of nude boys and asked him for his personal opinion as to whether he would hang out with someone who owned this book. What was this young man going to say? The answer was clear. What else could he say?

What could a young man say without the audience passing judgment on him that maybe he was a pedophile too? The deed was done. The prosecutor had made this witness the 13th juror, in that he was asked to pass judgment on Michael Jackson as an individual who had a 'thing' for young nude boys, merely because he owned a book of nude boys.

Is there any other way to interpret this line of questioning, other than to say it was used to shock the basic values of the witness into conforming with societal beliefs that anyone who owned such a book had to be someone who was 'hung up' on nude little boys?

In the final analysis, I hope it's not a book of nude young boys that convicts Michael Jackson, because then, it will become another era where you are judged by the books you read. Can anyone say 'McCarthy'. Does anyone still remember the history of the 'Salem Witch Hunts.' While owning a book such as 'THE BOY,' may not be illegal; while adult materials such as this pictorial essay may not be acceptable to many, what is on trial in this small Santa Maria courtroom is a man's ownership of a pictorial essay. Whether his possession of the book was for artistic reasons, in that he truly loves the perfection of a human form, however young. Whether he had it for other reasons, this is certainly true. Michael Jackson must not be judged on his possession of a book, unless his motivation in owning such a book can be clearly defined as for purposes of child molestation. If it can be proved [and it hasn't] that he showed this book to his alleged young 'victims;' that it had some involvement to the current accuser's case [it doesn't], then it is relevant. However, none of this has been shown, and it is now evident it will not be proven, since the prosecution has rested it's case.

So, we are back to square one. Should we condemn Michael Jackson because he owns a book, which was a gift to him, and which shows photographs of nude young boys? If we are to condemn him for this, then why not condemn everyone who views any form of nude art, including those paintings in museums, books, etc. What I am trying to say is, where does it end? History has been clear. Just remember, we are making history in that California courtroom.

Debra Opri is an attorney and legal analyst. Ms. Opri can be seen on all the major broadcasting networks discussing a wide variety issues involving legal challenges facing the nation.

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