Category: Michael Jackson
It is hard to sit back and watch fumbling lawyers allow an injustice to occur. I felt sick listening to the judge’s rant at the sentencing hearing. Not that I don’t think that Murray didn’t deserve a good part of it, but one critical point was entirely unfair. The judge made a unwarranted personal finding that Murray intended to blackmail Michael Jackson with the cell phone recording without even asking for the lawyers to comment on it. He made the finding without checking to see if there was any evidence to either support or contradict his personal belief. This violates due process of law.
The hearing started with the attorneys making their pitches for the sentence. Both were fairly understated. Not much advocacy. They were almost quiet. The prosecution made much of the documentary Murray made right before the end of the trial. I guess he needed the money, but it certainly hurt him at the sentencing since both the judge and the prosecutor battered him over it.
It is reported that the prosecutors are asking for a four-year sentence, the maximum for involuntary manslaughter in California. In addition to the prison term, the prosecutors wrote, Murray should be ordered to pay as restitution to Jackson’s estate the $100 million the singer would have earned from the comeback concerts, and $1.8 million in memorial service and funeral costs.
The last phase of the final arguments I am interested in is the prosecution rebuttal. Many prosecutors don’t specifically prepare for the rebuttal and lose one of their greatest advantages. They have been given the priceless gift of primacy and recency yet many fail to take advantage. Unfortunately for Conrad Murray his prosecutor, David Walgren, is not one of these incompetents.
Here is my analysis of Chernoff’s first few minutes. It seems chopped up because that is how Chernoff speaks. He darts from phrase to phrase without finishing his thoughts. He doesn’t speak in complete thoughts. He bounces around with his arguments. It is more like a conversation between two people; it is easier to hear than to read because of that. And quite frankly, at many times it is just disjointed. In any event, here is what I got down from him and what I think of it.
Prosecutor David Walgren employed a clever method of humanizing Michael Jackson by describing the pain of his death through the eyes of his children. I was surprised to see a state prosecutor sophisticated enough to use this angle. I don’t think that Jackson himself would appeal the same to the jurors. While Walgren was able to mount this argument without any objection from Murray’s sleeping legal team it was clearly an improper appeal to the juror’s emotions.
There is a lot of material to go through so I am breaking it up into the parts I think important. I am starting right at the beginning with Walgren’s first few minutes. I believe this time is critical to get the jury’s attention and get them motivated.
Thackeray captures the thought far better than me, but the sentiment is the same; the reason I started blogging was to re-examine the basic principles of trial work to see if they stand up to scrutiny. Character witnesses are a good example. My default position with them is to run as far as possible from them. Clients love the idea of character evidence, but are naive about the possible damage. I have witnessed too many disasters with them. I watched more than one experienced lawyer go down in flames with character witnesses.
The defense started its case and on Monday (10/24/11), and immediately ran into a blizzard of criticism and second-guessing by the self-proclaimed legal cognoscenti debating strategy on HLN and TruTv. The TV commentators are having a field day claiming the defense shot itself in the foot with witnesses nurse Cherilyn Lee and doctor Allan Metzger. I am not so sure.
It is the self-inflicted wounds that hurt the most. All trial lawyers are at times confronted by evidence they can not discredit and have to live with the resulting damage. We expect that, but when we do it to ourselves we writhe in anguish, relentlessly second-guessing our tactics. This weekend prosecutor David Walgren is residing in professional purgatory.