Obviously it would be entirely wrong to have any sort of definite opinion as to Michael Jackson’s guilt or innocence at this stage in his trial. What concerns me, though, is what the evidence we have heard from the prosecution has implied strongly, and which the defence has not raised in cross-examination.
It seems to me that most of the witnesses have implicated themselves, at least by inaction, as accessories after the fact to the abuse that they testify to having witnessed. I am prepared to stand corrected on US and California law, but surely if you see someone performing sexual acts on an underage child, you have an absolute duty to prevent the continuance of those acts, both directly by intervening at the time, and indirectly by informing the authorities as soon as possible. The fact that you might lose your job, or contravene a confidentiality clause, would seem to me to be no defence; in fact, since it implies that you have a financial stake in the undisturbed continuance of the abuse, it makes your status as accessory or even accomplice rahter more obvious.
All those members of Jackson’s household staff, and several of the relatives of allegedly abused boys, who have testified seem to me to have implicated themselves in this way. And these are prosecution witnesses, which implies to me that they have been given immunity from prosecution for their own crimes of omission on condition that they testify.
It seems to me that this hopelessly contaminates the prosecution’s case. If anyone who testifies for the prosecution is doing so on the basis of an immunity deal, there is a strong implication that that deal depends on their delivering unequivocal evidence of what the prosecution wants them to have seen. Even before there are questions of selling their stories to the press, this gives them a strong interest in shading their evidence in a particular direction and damages their credibility.
As I say, I express no view as to Jackson’s guilt or innocence, but I am very worried that the prosecution’s mild obsession with bringing him to what may or may not be justice has betrayed them into some very dangerous strategies which I assume the defense will at some time raise. It concerns me somewhat that they don’t seem to have raised the question of witness immunity already. If Jackson is guilty, it would be a terrible though necessary thing for him to walk on the basis of evidence having been suborned.
This is one of those cases where I may have got everything totally wrong, and would welcome correction. There is a furhter point and it is this – just how far back does the duty of care in such cases go, and just who is an accessory after the fact. If the former Cardinal Ratzinger can be shown objectively – and the material in today’s Observer seems to do so – to have created a set of rules of confidentiality which made it possible for clerical abusers to weasel out of prosecution by limiting the ability of witnesses to come forward, then is he close enough to acting as accessory to face prosecution? Perhaps the reason he was so keen to be the Pope was that without the head of state immunity that offers him, he was worried about going, as they say on The Bill,