Strange Bedfellows

Fans of Michael Jackson are constantly on the lookout for allies who will help them shore up Jackson’s tattered reputation, and their quest has resulted in some strange bedfellows. One such fellow traveler, as I recently found out, is RazörFist. (I feel silly typing that – from now on I’ll refer to him as just Fist.)

Fist created a video damning the negative media surrounding Jackson, and pronounced Jackson innocent based on his “research”. This video has been in circulation on social media, being pushed by fans as a “true and dynamic rebuttal of some of the worst lies about Michael Jackson.”

Curious, I clicked on the link to Fist’s YouTube channel. At first glance Fist appears to be living a teenage boy’s wet dream, earning a living making videos about computer games, metal bands, and other trivial subjects that appeal to shiftless young men. Look closer though, and the receding hairline and wrinkles reveal the truth. This is no teenager. This is an unblooded man rapidly approaching middle age who appears to be stuck at Mom’s house. If you were to write a movie of his life it could be a combination of Failure to Launch and Spinal Tap (but without the cool bits). Continue reading

Wade Robson – The Marathon Part II

Things have changed considerably in Wade Robson’s case against the Michael Jackson companies, so much so that we’ve decided to create this new page for updates. Our old page is still up and gives a good overview of the case up until early 2016, and there are other stories on the Wade Robson case available here.

A major development in September 2016 was a change in lawyers for Wade — he has dropped Gradstein & Marzano and picked up Manly, Stewart & Finaldi. No reason has been given for the change; however, we do know Wade’s new lawyers specialize in sexual abuse cases. Many of their previous cases, often involving teachers or priests, have been settled for tens of millions of dollars. Whether a settlement is the end goal in Wade’s case is unclear — his lawyers have requested a jury trial.

In early September, Manly, Stewart & Finaldi drafted a new fourth amended complaint to more accurately reflect claims against Jackson’s corporations, rather than his Estate as earlier complaints did. Dropped from the complaint are claims of:

  • childhood sexual abuse;
  • sexual battery, assault and battery; and
  • negligent infliction of emotional distress.

Added are claims of:

  • negligent supervision;
  • negligent retention/hiring;
  • negligent failure to warn, train or educate; and
  • breach of fiduciary duty.

That the sexual abuse claims have been dropped does not mean that Wade is saying that the sexual abuse did not happen, rather this new complaint reflects the reality that it is impossible for a company to molest a child.

In response to this new fourth amended complaint, the Michael Jackson Estate lawyers have countered that Wade should have filed his new claims earlier; that his negligence claims are unsupportable; and that any changes now would cause an unacceptable delay in the trial.

It’s important to understand that this case hinges on California civil law regarding time limits on claims for damages for childhood sexual abuse, more specifically Code 340.1(b)(2). In this Civil Code, no action for liability for childhood sexual abuse may be commenced against any entity after the alleged victim’s 26th birthday unless three conditions are met. These conditions, as they would apply to this case, are:

Firstly, that the companies knew, or had reason to know, of any unlawful sexual conduct by Michael Jackson;

Secondly, that Jackson had engaged in unlawful sexual conduct. (Note that at this stage of the case, the judge considers all claims by Wade to be true);

Finally, that those within the companies failed to take reasonable steps, and to implement reasonable safeguards, to avoid further acts of unlawful sexual conduct by Jackson including, but not limited to, preventing him being around children in any company organized setting that required the child or children to be present.

In hearings related to the third amended complaint, Judge Mitchell Beckloff was satisfied that all the elements were shown to have existed — those within the Jackson companies knew or had reason to know that Jackson had engaged in unlawful sexual conduct; that the unlawful sexual conduct had actually happened; and that someone else in the company had control over Michael Jackson. Bearing in mind that at the demurrer stage the court must construe all allegations of the complaint liberally and allow all reasonable inferences and implications in Wade’s favor, Beckloff considered his claim that Norma Staikos had a degree of control over Jackson to be justified.

In the new fourth amended complaint, Vince Finaldi has emphasized that the Jackson companies had a duty of care toward Wade. It is alleged that rather than protect children, the companies aided and abetted the abuse by drawing children into Jackson’s orbit so that they could be abused. Finaldi defines Jackson as both president/owner and representative/agent of the Jackson companies and says that the companies served dual purposes — firstly as entertainment companies, but also as thinly-veiled, covert operations designed to locate, attract, lure and seduce child sexual abuse victims. Under this second purpose, Jackson and a select few managing agents/employees “designed, developed and operated what is likely the most sophisticated public child sexual abuse procurement and facilitation organization the world has known.”

The Estate’s reply is strong. They offer that the Jackson companies had no existence or purpose other than to conduct his business affairs. In other words, as child sexual abuse is not a part of Jackson’s business affairs, the companies cannot be held liable for anything that happened to Wade. On the face of it, this makes perfect sense but the assertion is false. In court testimony and documents from the 2005 trial it was shown that Jackson company employees were used extensively to organize Jackson’s private life: from Norma Staikos handling invitations for children to come to Neverland, to Orietta Murdock organizing transport for his guests, and Jolie Levine buying gifts on behalf of the pop star being just a few examples. Under United States corporate law, mixing private affairs and company business together dilutes or even cancels protections offered under that law. This is how it works: Jackson was using his companies to perpetuate a fraud, deceiving parents into believing that his companies were purely involved in entertainment while they were in fact being used to organize his personal affairs — including getting closer to children both physically and emotionally. When a company is used like this it becomes the owner’s “alter ego”, and protections previously offered under a company structure no longer apply. Things aren’t as cut and dried as the Estate lawyers make them out to be. Jackson using MJJ Productions Inc staff for private purposes stretches back to at least 1984 when secretary Mary Coller was directed to organize sleepovers with ten-year-old Jonathan Spence at Jackson’s then home, Hayvenhurst.

The Estate response also makes clear that Jackson was not in a position to be hired or fired from the companies. Nobody working for the companies “hired Michael Jackson, supervised him, or could fire him. They did not and could not.” On the evidence provided by the Estate this appears to be true. Attached to the Estate’s reply are documents which show that Jackson owned one hundred percent of both MJJ Productions and MJJ Ventures and, on paper, had complete control over them. That Jackson’s employees knew that he was engaged in inappropriate behavior with children is certain: Norma Staikos warned Orietta Murdock (another employee) to never leave her son alone with Jackson; Jolie Levine, Jackson’s one-time executive assistant, described Jackson to police as a “chicken hawk”, slang term for a pedophile; another employee, Charmayne Sternberg, was highly suspicious of Jackson’s behavior with Wade Robson. That Jackson had total control presents problems with the third condition in Code 340.1(b)(2) mentioned above, and Wade’s lawyers need to conclusively prove that Norma Staikos (or another employee) had enough control over Jackson’s movements and could stop him from having contact with children without resorting to something so drastic as firing him.

If the Estate can prove that nobody could control Michael Jackson and what he did in the context of his companies, then this case is all over for Wade. It would be assumed that the Estate would apply for summary judgment on this point and the case would be dismissed on that point alone.

Even if Wade’s lawyers can avoid that stumbling block, they still need to prove that Wade’s abuse was a direct result of being employed by Jackson’s companies. Wade’s abuse started before he was employed by either MJJ Productions or MJJ Ventures; the Estate lawyers contend that any alleged abuse occurred as a result of a personal friendship while Wade was in Jackson’s personal care. This is not necessarily a great defence by the Estate — in Judge Beckloff’s demurrer ruling he remarked that a business relationship was established when Wade’s residency in the United States, and involvement with Michael Jackson, was facilitated and promoted by the companies who also employed Wade and his mother so that the sexual abuse could be continued.

The Estate lawyers want to minimize Wade’s employment by the companies, and for very good reason. If they can convince the court that the abuse occurred as a result of a personal relationship, then not only are the companies not liable, but also the staff can be exonerated for not reporting their suspicions to law enforcement. If there was no “special relationship” between Wade and the Jackson companies there is no duty for Jackson’s staff to be ‘Good Samaritans’ — the Estate lawyers quote Conti v. Watchtower Bible & Trade Society of New York, Inc., 235 Cal.App.4th 1214, 1226 (2015) “[W]here the issue is whether the defendant had a duty to protect the plaintiff from harm caused by a third party, the absence of a special relationship is dispositive (settles it)” and requires no further analysis. They argue that the Jackson companies owe no duty of care to Wade because the companies had nothing to do with Wade, just as bystanders have no duty to intervene in a mugging. This is untrue. Wade was employed by Jackson’s companies, and Norma Staikos apparently knew Wade well enough to pass on items from Jackson.

norma-these-are-wades-2

 

Wade’s lawyers can argue that whilst Wade was working and in the care of Jackson’s companies then those companies had an in loco parentis duty of care. In loco parentis  is a Latin term meaning “in [the] place of a parent” or “instead of a parent,”  and refers to the legal responsibility of some person or organization to perform some of the functions or responsibilities of a parent such as keeping them safe and providing them with care when there is a “special relationship” .  The Estate lawyers argue that a “special relationship” is restricted to schools, day care centers, or other youth organization such as the Boy Scouts and wouldn’t apply to the Jackson companies. Yet as we have seen Jackson did act in loco parentis not only with Wade but many boys. Jackson took on the role of Wade’s mentor, teaching him music production and dance. As a consequence, they spent a lot of time together away from the boy’s parents, with Jackson responsible for his young protege’s welfare. If a school had an in loco parentis responsibility for children in their care for several hours a day, then Jackson certainly would too if he and Wade spent days and nights together in their respective roles of tutor and pupil.

Several minor issues are also covered in the Estate’s reply. One issue is, as they put it, “Plaintiff and his mother were fully aware of the investigation and participated in the investigation, but adamantly denied that any abuse had occurred and continued their close personal relationship with Michael Jackson for years despite the reporting.” This is entirely true, yet there are problems with this statement.  At the time of that investigation, Wade was 11-years-old – logically, there should be little stock put into a young boy’s defense of a man who would’ve had the motive and the opportunity to coerce him to lie. As for Wade’s mother, even if we suspect her of knowing about what was going on, she states that she did not believe that Michael Jackson was a child molester because of the assurances she was given by Jackson’s employees. The Estate lawyers try to subtly tie Joy Robson’s supposed knowledge of the accusations to the same knowledge the company employees had, however they are not equivalent. There is is a vast difference between Jackson’s employees who knew he was a molester, and said so to each other and law enforcement; and a mother who was given the impression by those same employees that it was safe to leave her child with the entertainer.

Another point the Estate’s lawyer brings up is Wade’s testimony at the 2005 trial. His defense of Jackson in 2005 may have some relevance as to his credibility as a witness but any good child abuse victim expert will be able to neutralize any seeming damage to his current allegations very quickly: delayed disclosure and defending their abuser is quite common for acquaintance molester victims. Wade revealed he did not believe until 2013, after disclosing to a therapist, that he had been abused; prior to that he was convinced that the sexual relations he and Jackson shared were consensual and love-based. His denials on the stand of sexual abuse came easily because of that realization; his untruthful replies to questions such as “Mr. Robson, did Michael Jackson ever touch you in a sexual way?” a result of brainwashing by his adult friend who convinced him that others wouldn’t understand, that the sex they had engaged in was normal, and that they could both be ruined if anyone found out about it.

Both sides’ arguments will be heard on October 7th 2016. Judge Beckloff may deny the motion to amend the complaint, in which case the original third amended complaint will prevail. In that case, the Estate plan to file for summary judgment on November 23. Based on their reply  it appears they feel they have a better chance of fighting the original third amended complaint. Their reply to the third amended complaint  is short, sarcastic, nasty, and dismissive — indicating confidence that the complaint could be easily beaten. Some of the replies to causes of action are just a brief sentence or two. The Estate contends that Wade was “telling the truth in 2005”; that now he is saying he “chose to lie to a criminal jury in 2005”; and that he changed his story merely because “Michael Jackson is no longer here to defend himself.” Compare their brief reply to the effort they have put into trying to prevent the fourth amended complaint being approved.

Another insight into the tactics of the Estate lawyers was revealed in their choice of doctor for Wade’s independent medical examination. The examination was performed on August 22nd, 2016 and was conducted by Harrison G Pope, Professor of Psychiatry at Harvard Medical School. Dr. Pope is a highly cited academic whose main research focuses on substance abuse. He has also written extensively about repressed memory and the recovered memory controversy, arguing that repressed memory does not exist. In this 1994 interview in the publication Currents in Affective Illness, he addresses what he believes repressed memories to be and dismisses them as not possible.

When I say “repression,” I mean a phenomenon in which one experiences severe trauma, such as repeated rape, and then banishes the memory from consciousness and is not able to recall it until many years later. Some call this “strong repression,” to distinguish it from ordinary forgetfulness. I would grant that a child could have something happen when he or she was four-years-old that would be forgotten as part of the normal process of infantile amnesia. But what I would not grant, and I think this is where the debate is, is that someone could be repeatedly raped over a period of years … and then completely expunge all of those traumatic memories from consciousness only to recall them years later.

The Estate have made a clear mistake. They appear to still believe that Wade suffered from “repressed memories” and that he had forgotten his abuse until 2013. The claim of “repressed memory” is based on preliminary media reports from then and doesn’t reflect reality: Wade has consistently said that he remembers everything that happened. He did not believe he was ever raped (Michael Jackson was never violent), thought he was a willing participant, and even said he enjoyed the sex. It wasn’t until he had therapy that he realized that Jackson had used him for his own lustful pleasures. Dr. Pope recognizes this when asked specifically about a situation just like Wade’s:

CURRENTS: But if an adult has sex with a child and the child doesn’t know what to call the activity or doesn’t know that the activity is inappropriate — that is, has no explicit memory of the activity although perhaps has implicit (experiential) memory of it — then when the child subsequently learns what the activity was, could he or she be said, not so much to have recovered as to have reconsidered the memory? That is, “Oh, is that rape? That happened to me.” In that sense, perhaps the person had a “reconsidered” rather than a “recovered” memory.

POPE: Yes, that sounds plausible. I believe that kind of phenomenon could occur.

Dr. Pope makes it clear that we can’t compare Wade’s memories of childhood sexual abuse at the hands of Jackson with “recovered” or “repressed” memories – they are very dissimilar. From this, we can conclude that Wade’s independent medical examination won’t be revealing any bombshell information the Estate can use to discredit Wade’s previous or current testimony on the abuse he suffered.

In conclusion, Wade’s case is still looking good if, and only if, it can survive summary judgment on the issue of whether anyone in the Jackson companies had the power to do something to prevent Jackson’s continued abuse of Wade. Should the Estate prevail, it will be on that technicality alone, not because of any other deficiency in the suit. Interesting times lie ahead.

Update: On the 7th of October 2016 Judge Beckloff approved the fourth amended complaint.