What Does Jackson’s Indictment Mean? A Lawyer Explains

A grand jury indicted him on molestation charges Wednesday.

Countless Americans went to bed Wednesday night wrestling with two puzzling questions: Why was Jennifer Hudson voted off and what does being indicted by a grand jury mean for Michael Jackson?

Right around the time of the shocking “American Idol” development, news broke that Jackson had been indicted on child-molestation charges (see “Grand Jury Indicts Michael Jackson” ).

But Jackson was already charged, right? Yes, and who could forget that spectacle (see “Michael Jackson Pleads Not Guilty To Child-Molestation Charges” )? But after a defendant is arraigned, there is typically a preliminary hearing where a judge decides if there’s enough evidence for the case to go to trial.

Prosecutors also have the option, according to Stephan DeSales, an Orange County criminal defense attorney who has handled many molestation cases, to instead request a grand jury review the case and determine if the accused should stand trial, which the Jackson grand jurors decided Wednesday.

The main differences between a preliminary hearing and a grand jury investigation is that the latter proceedings are held without defense attorneys present and are not open to the public.

“Fundamentally, it’s a way to bypass the ability of the defense to cross-examine, which they would have the right to do at a preliminary hearing,” said DeSales, former prosecutor for Los Angeles County. “The old saying is the district attorney could indict a ham sandwich if he wanted to because the grand jury is more or less a rubber stamp for the DA.”

The district attorney — in Jackson’s case Tom Sneddon (see “Why Is The DA In The Michael Jackson Case Smiling?” ) — is required, however, to present to the grand jurors any evidence that might clear the defendant.

One risk a prosecutor takes with a grand jury investigation stems from a California Supreme Court ruling made about two weeks ago. “Basically, the decision says that if a defendant is not afforded the right to cross-examine witnesses fully, than a prior statement of a witness cannot be used in a trial if that witness is then unavailable,” DeSales explained.

There’s a chance that could play a major role in this case. “Let’s assume this young man who is Mr. Jackson’s accuser is as ill as people say and he dies,” DeSales said. “Well, by putting him on in front of a grand jury and not in front of a preliminary hearing, there may be a big problem in using his statement against Michael Jackson.”

So why would the prosecution take that risk? “Obviously, the strategy from the DA was not to subject [the accuser] to cross-examination and not put him through the hoops at a preliminary hearing,” DeSales said. Sneddon could not comment because of a gag order, according to his spokesperson.

Now that Jackson has been indicted, he will be re-arraigned and the new complaint will replace the prior one. “It’s probably going to be the same case, but it may be tweaked a little bit,” DeSales said.

Had a judge found probable cause in a preliminary hearing, the case would have moved along in much the same manner. The grand jury indictment might expedite the trial date by a month, “but it’s going to take awhile no matter how they cut it,” DeSales said. Judge Clifford Anderson has said he would like to go to trial in December.

Jackson would have been tried in a Santa Barbara Superior Court either way, DeSales added.

Transcripts from the grand jury proceedings will be provided to Jackson’s defense team within 10 days and to the public within 20, unless Jackson’s attorneys convince the judge doing so would prejudice a potential jury pool.

Surely one of the most interesting revelation to come from the transcripts will be whether the boy who accused Jackson of molestation in 1993 (and later settled for millions) testified for the grand jury.

“They can use that in California as what they call ‘evidence of other uncharged acts of misconduct,’” DeSales said. “Even if those are not part of what he’s accused of, if they can demonstrate identity of the perpetrator, method of operation, absence of any accident or misfortune, then it is admissible.”

Jackson will be arraigned on April 30, although because grand jury indictments are confidential, the court is officially listing the date as a pretrial hearing.

For full coverage of the Michael Jackson case, see “Michael Jackson Accused.”