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 four-minute recording found on Murray’s cell phone revealed an impaired Jackson describing his ambitions and aspirations as his personal physician listened. The incensed judge believed the rambling, almost incoherent, recording of Jackson’s slurred voice that Murray made, about six weeks before the singer’s death, might have been part of a blackmail scheme:

“Of everything I heard and saw during the course of the trial, one aspect of the evidence stands out the most, and that is the surreptitious recording of Michael Jackson by his trusted doctor. That tape recording was Dr. Murray’s insurance policy. It was designed to record his patient surreptitiously at that patient’s most vulnerable point . . . I can’t help but wonder that if there had been some conflict between Michael Jackson and Dr. Murray, at a later point in time in their relationship, what value would be placed on that tape recording — if the choice were to release that tape recording to a media organization.”

The judge called the taping “offensive” and a “horrific violation of trust.”

Murray’s attorneys were never asked by the judge nor ever explained in court why the recording was made, and prosecutors said they do not know what substances Jackson was under the influence of when the audio was recorded six weeks before his death.

Typical of the defense, they said nothing about the recording in court, nor did they object to the court’s out-of-thin-air finding of blackmail. Defense attorney J. Michael Flanagan said after the sentencing hearing that Murray made the recording accidentally while playing with a new application on his iPhone. He deleted it, but a computer investigator recovered it from the doctor’s phone after Jackson’s death.

Judges have wide latitude in imposing a sentence, but one of the few restraints is that they can’t use false information. The due process clause has been used to invalidate non-capital sentences that are based on inaccurate information. United States v. Tucker, 404 U.S. 443, 448 (1972). The same applies to mistaken information or baseless or erroneous assumptions. United States v. Collins Spencer Catch the Bear, 727 F.2d 759, 761 (8th Cir. 1984); United States v. Lemon, 723 F.2d 922, 933-35 (D.C. Cir. 1983). The court in Lemon made it clear that if a judge relies upon uncorroborated suspicions, the sentence violates due process. “Yet this evidence consists of several thin strands, each of which is so frayed that, even together, they cannot support the conclusions that we have determined must accompany any unfavorable use of information . . . .”

The judge made it quite clear that the maximum sentence he imposed was due in large part to the “offensive” and “horrific” taping. So this sentence seems to be based on a false assumption. At the very least, the defense should have been asked if they had any response to the motive of the recording. Basic criminal procedure and common sense requires at least that. Perhaps a question along those lines would have awoken Murray’s dozing lawyers.

Murray needs to act quickly to correct this false finding by the court. His lawyers never lodged an objection and that might waive his rights. However, if he immediately petitions the court for an evidentiary hearing on this issue, he might be able to resurrect it. In all fairness he should be given this opportunity.