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.

Up until now, Walgren has done an admirable professional performance, but he went one issue too far Friday (10/21/11) with prosecution expert Dr. Steven Shafer towards the end of his otherwise sterling direct examination. He decided to open the door to the possibility Jackson released the Propofol IV.

Walgren: “Can you rule out the possibility that Michael Jackson manipulated something to cause it to flow?”
Shafer: “That’s a possibility.”

Then Shafer went on to opine that if Murray set up the drip and left Jackson’s side, Murray was still responsible for Jackson’s death even if Jackson turned the drip on.

Shafer: “If Michael Jackson had reached up, seeing the roller clamp, and opened [it] himself, this is a foreseeable consequence of setting up a dangerous way of giving drug [and] is in no way exculpatory for the fact that Dr. Murray was not present and permitted this to happen.”

Walgren was attempting an anticipatory rebuttal to the defense theory of self administration of the Propofol, but instead, he inadvertently gave credence to the theory. And quite frankly, I don’t buy this prosecution claim. If Jackson turned on the clamp and gave himself a fatal dose of Propofol, then he is responsible, not Murray, for his own death, no matter which girlfriend Murray was talking to.

On cross-examination, defense attorney Ed Chernoff scored a direct hit on Shafer’s arrogance:

“Everything you said in the last two days was your opinion. You do understand that, right? Do you understand that?”
Shafer: “I stated my name, which I think is a matter of fact.”

I love witnesses who engage in sarcasm. It always backfires and makes them look arrogant. Sometimes experts like Shafer are too smart for their own good and want to fight back at the defense attorney. They don’t like the straight jacket of leading questions and suggestion of errors. It is always a mistake and damages their credibility. And this is their last witness, and of course they want to leave the jury with a good opinion.

Young lawyers get frustrated with witnesses like Shafer, but they are a gift. They give you the opportunity to strengthen your case and credibility so long as you don’t panic and approach him calmly. The jury will link the witness with the side that calls him and hold it against them.

Sure, he looked good on direct exam, but everyone knows that is carefully scripted in advance. The real test is on cross. Their true colors come out then. Shafer and witnesses like him don’t like to be challenged, and they get testy. Let him. Work on it. The jury will soon see him twisting words and trying to take unfair advantage. Just try not to smile too much.