The error that keeps on erring

Error, according to the classical reckoning, enjoys no rights. But in the 24-hour news cycle, it sometimes achieves a kind of immortality.

That’s never truer than in the coverage of criminal cases. One particular thread of the Michael Jackson case is strikingly instructive on how this can occur -- even in the face of the news media’s prompt and repeated attempts to root out the mistake.

In this instance, the error involves not some peripheral narrative detail, but an issue fundamental to the prosecution: Does a California law adopted after an abortive 1993 investigation into allegations that the singer had molested a young boy allow prosecutors to compel an alleged child victim to testify?

The answer is no. There is no such law.

If you thought there was, you’re in extensive company -- including a large number of the callers discussing the case on AM talk radio and a clutch of reporters and commentators. In part, that’s because the error originated with one of the story’s principals, Santa Barbara County Dist. Atty. Tom Sneddon.

In a nationally televised news conference Nov. 19, he recalled the 1993 situation in which the alleged victim declined to cooperate with prosecutors after Jackson paid him a settlement that amounted to tens of millions of dollars.

“The law in California at that time provided that a child victim could not be forced to testify in a child molest proceeding without their permission and consent and cooperation,” Sneddon said. “As result of [that] Michael Jackson case, the Legislature changed that law, and that is no longer the law in California.”

Within hours, cable news producers from coast to coast were beating the telephonic bushes for “legal experts” to explain this new law, which -- oh, delicious causality -- had been passed because of Jackson’s earlier conduct in a similar case.

Here, somebody might have paused to apply what could be called the old how-would-that-really-work test. Imagine for one second the fate of an elected district attorney who compelled a child victim to recount the details of his sexual abuse by threatening to have the tyke jailed for contempt of court.... The operative words here are “elected” and “child victim.” Any prosecutor who did such a thing would be out of office quicker than you can say Gray Davis. In fact, they’d probably be lucky to fend off involuntary commitment to a home for the criminally thick-witted.

But common sense notwithstanding, it is a now wearisomely unremarkable fact that there was no shortage of talking heads with law schools in their pasts willing to appear on camera that night to dance evasively around the nonexistent law.

What was remarkable is that they did so in the face of an Associated Press story filed later that very day, setting the record straight. In that piece, AP special correspondent Linda Deutsch and her colleague Tim Molloy noted that Sneddon’s description of the law had “baffled legal experts.”

In an follow-up interview shortly after his press conference, Sneddon told Deutsch and Molloy he was referring to another law. That statute regulates only civil settlements, forbidding payments to an alleged victim more than one year after the settlement is reached. In other words, no long-term hush money.

“Sneddon said he was aware that children cannot be forced to testify,” according to the AP story, “and that reporters and other attorneys had misinterpreted his remarks at the news conference.”

The next morning, however, there was NBC’s “Today” show host, Katie Couric, interviewing attorney Johnnie L. Cochran Jr., who represented Jackson in the negotiations that lead to the 1993 settlement:

Couric: “Well, now a new law states that a minor can be called as a witness by the D.A. without consent. So, it’s slightly ironic that this change in law that resulted from this previous case may be the thing that actually gets, possibly, gets Michael Jackson in the end.”

Cochran: “I think the law was changed after that.... And now they can call witnesses and compel their testimony.”

Oh no they can’t, a slightly exasperated Jeffery Toobin, CNN’s legal affairs analyst, told colleague Miles O’Brien later that same day, as they covered Jackson’s surrender to authorities.

O’Brien: “As a parent, I can’t imagine anybody trying to compel an 11-year-old ... to testify in court. I’m sure a lot of people would have problems with that.”

Toobin: “No, it can’t be done under California law. In fact, the law is broader than that. You can’t even compel an adult victim of a sexual assault to testify. That statement by the district attorney is simply wrong. There can be no compulsion.”

Less than a week later, attorney Daniel Petrocelli was on Fox News’ highly rated “Hannity & Colmes” still vainly trying to set the record straight. Sneddon, Petrocelli said, “referred to a change of law which would permit him to compel the boy to testify, but that is not the law. In California, the victim of a sexual assault, including this young boy, cannot be compelled to testify against his will.”

All this expert opinion to the contrary, the paraphrased assertion that Santa Barbara authorities can force the alleged victim to testify, should that become necessary, continues to ricochet undeterred through various parts of the Ameri- can, British and Canadian press.

As late as Monday, a New York Times story on the posture of the Jackson case by Dean E. Murphy was forced to note that though “Sneddon suggested differently at a news conference ... legal scholars say California law does not allow prosecutors to compel a victim of sexual abuse to testify about it.”

Santa Clara University law professor Gerald F. Uelmen is the bar’s go-to scholar on issues of California law.

“This law I keep hearing about in the media doesn’t exist,” he said. “The Santa Barbara D.A. misspoke and completely blew it. Whatever he claims now, he said there was such a law and he was dead wrong. He was right that, since 1993, there have been a lot of changes in the California statutes that make it easier to prosecute child abuse cases. But there is no statute that allows anybody to compel any victim of abuse to testify.

“What’s a lot more interesting is how the media picks up these things and then feeds off each other’s misinformation so that it becomes impossible to put one of these pseudo-facts to rest.”