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Toobin: Delay in charging Jackson a boost for prosecution

CNN legal analyst Jeffrey Toobin
CNN legal analyst Jeffrey Toobin

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(CNN) -- A source close to the Michael Jackson investigation told CNN Tuesday that formal charges against the pop star will not be filed before mid-December. Authorities had earlier indicated that child molestation charges against Jackson would be filed sometime after Thanksgiving, but the source said more time is needed to examine evidence seized from Jackson's Neverland Ranch.

CNN's Paula Zahn spoke Tuesday evening with CNN legal analyst Jeffrey Toobin about the developments in the Jackson case.

ZAHN: Let's go through this delay, and when we will see these formal charges. We heard the rationale for the prosecution wanting this. Is this a huge boost to the prosecution?

TOOBIN: Sure. They want it. What I don't understand is why [Jackson attorney] Mark Geragos surrendered his client when there are no charges pending against him. You know, people don't usually walk into police stations and say, "Go ahead, book me and charge me whenever you feel like it."

ZAHN: So why do you think he did it?

TOOBIN: Well, I think what was likely the scenario is oftentimes when you have a defendant who is represented by a lawyer, you arrange a surrender date that is convenient for everyone so you don't -- so you'd have an orderly process, the lawyers, you know ...

ZAHN: Mr. Geragos is kind of a busy guy right now.

TOOBIN: He is a famously busy guy. But usually you would think a day or two until charges. Here, the prosecution is going to be able to accumulate a great deal more evidence, because the search warrant was just executed, and this arrest warrant will now be apparently a much more powerful accusatory document. Geragos gave him that chance by apparently agreeing to this delay in the filing. I have never heard of an arrest warrant being filed so much later than an arrest date. I don't think it's ultimately all that significant, but it is an advantage for the prosecution.

ZAHN: Well, say what you want to say about Mark Geragos. Because he certainly is a lightning rod for a lot of criticism. You clearly think this is a strategic blunder?

TOOBIN: I would say a tactical blunder. You know, strategic overstates it. But it is strange to surrender your client, subject him to this incredible personal humiliation, and then once the arrest warrant comes out, you'll have an even, you know, another round of extremely bad publicity, with greater detail in it, because they've had this extra time to prepare the arrest warrant.

ZAHN: ... Mr. Geragos [had a] very strong reaction to the fact that he and his client were secretly videotaped on the charter jet that flew them from Las Vegas into Santa Barbara. What is the potential that that tape could actually be used by the prosecution?

TOOBIN: I think extremely unlikely. I mean, it really is an appalling thing that someone would tape an attorney and client together. I mean, this is the heart of what attorneys and clients are supposed to do, communicate freely and openly without suspicion.

The only way I could see this being used against Michael Jackson, if there is some portion of the tape that Geragos is not on, where Michael Jackson is talking to someone else on the plane. Even though Mark Geragos and company could sue the jet company, because the government is not involved in the misconduct, because the government didn't do this taping, they could use that evidence, potentially, in court. They couldn't use it if it's covered by the attorney-client privilege, but if Jackson is talking to someone else and it's incriminating, maybe they could use it then.

ZAHN: You say this idea of videotaping on the plane is appalling. Is it against the law?

TOOBIN: Certainly civil -- I'm not sure. I'm not rendering my verdict yet. I think it's certainly probably a violation of Michael Jackson's rights, it's certainly probably a civil offense. Whether it's actually criminal, that I couldn't tell you. I think if there's anything on tape between Jackson and Geragos, it's not coming out anywhere, and it really shouldn't.

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