Early last Wednesday morning (10/12/11), Conrad Murray’s lawyer, J. Michael Flanagan, shocked the courtroom by announcing:”We are not going to assert at any point in time in this trial that Michael Jackson orally ingested Propofol.” This announcement was based on medical studies that show Propofol has no major effects on a person when swallowed. Flanagan said that a defense-commissioned study showed the effect of swallowing the anesthetic Propofol would be “trivial.”

The most important job of the trial lawyer is to select the theory of the case. In class we have finished the first trial, so ironically, as we are at the end, we turn to the first thing: Theory of the case. Only when the final product is presented can one see the need for an organizing principle. This is good timing because Conrad Murray’s bungling legal team provides the perfect concrete example of its importance.

So how damaging is the abandonment of the central defense claim that Jackson caused his own death by swallowing an extra dose of Propofol? Perhaps it is time to perform an autopsy on the defense team.

How did Murray’s legal team Create this Disaster?

The defense previously claimed that after Murray gave the singer a small dose of Propofol to put him to sleep, Jackson woke and swallowed a fatal dose, poured from a juice container, while Murray was taking a bathroom break (of course they haven’t proven the two minute bathroom break either).

The defense first floated this theory at the preliminary hearing. Both in and out of court, they suggested that the singer may have poured some into fruit juice and drank it. Then lead defense attorney Ed Chernoff said in his opening argument on September 27th that he would show that Jackson gave himself the fatal dose of Propofol.

While defense charts note that a small amount of Propofol was found in Jackson’s stomach,  Flanagan told the judge during his announcement on Wednesday the method of oral ingestion was not specifically mentioned in openings. Chernoff just said self-administered. But let’s recognize reality– the jury clearly understood orally because Chernoff didn’t say otherwise, and he mentioned swallowing drugs and causing his own death many times.

They have practically abandoned their main argument that MJ self injected or ingested the Propofol. They know that there is no way to prove it scientifically, and no other doctors or specialists will put their reputations on the line to testify that Murray acted professionally, especially since the California Medical Board found gross violations.

Flanagan’s recent questions to witnesses indicate that he now claims that Jackson swallowed pills on his bedside table, specifically Lorazepam. Although as I pointed out in a previous post, Flanagan botched the cross by allowing the coroner’s toxicologist to lecture the jury on how Lorazepam from the blood could be trapped in the stomach. Also if they do claim the Lorazepam killed him, they would have to challenge the coroner’s ruling that Propofol killed him.

Dr. Murray’s lawyers apparently will instead focus on a theory that Jackson used a syringe to inject the sedative through a catheter which was running into his left leg. If so they have a huge mountain to climb.

Does this new theory hold up?

The argument would go something like this: Jackson woke up, despite all the sedatives pumped into his body, reached to the night stand, grabbed a syringe, got the Propofol bottle, filled the syringe, reached the Y connector (approximately 6 inches from the back of his left leg), insert the needle into the connector, inject the Propofol, pull out the syringe, because it was not found in the connector, put it back on the night stand, all in two minutes. And Murray claims Jackson’s vision was so bad he could have been declared legally blind.

While this new theory is hard enough to swallow, it is not the only problem to overcome:

Murray said that Jackson continued requesting the Propofol all night. If Jackson were capable and willing to take the chance to self-inject, he wouldn’t have kept nagging Murray repeatedly to give it to him.

If Murray knew that Jackson would self-administer Propofol, why would he leave a patient, with a history of self-administering drugs, all those bottles of drugs by Jackson?

How come Jackson’s fingerprints aren’t on any of the bottles? Was he was wearing his famous glove?

Changing horses Mid-Stream

Once you tell the jury your theory of the case, it is set in stone. It can be changed but only with utmost honesty by fully explaining why. And the explanation better be good. I am not sure this is possible with Murray. Unless they have something I don’t know about, it will look like grasping at straws, and seizing any excuse.

The theory contains all your factual and legal research. It evolves as your knowledge expands. Never theorize without the facts. As Descartes said the world’s most beautiful theory can be destroyed by one ugly fact. Murray has stumbled on to this problem. Swallowing the Propofol was a wonderful theory. It solved all his problems. But it didn’t work. So back to the drawing board.

The Damage

How damaging is it to change your theory of the case mid-trial? Look at these comments I saw online:

One person commented: “If I was a juror and they changed their theory after the opening statement I would totally see that as grasping at straws and that they are just making up anything to get their client off. It would definitely make me lean more to the prosecution after that.”

Another said: “If it’s really the truth then there is only one truth and it will never change.”

What is a theory of the case?

Effective trial lawyers must know more than the rules of procedure and evidence. They must know how human beings process information and make decisions. They must conduct extensive jury research to determine how their case will be perceived by a lay jury. This will come as a shock to most lawyers — jurors do not think like us! This simple observation makes jury research a must. Lawyers can’t rely on their intuition, but rather must learn how jurors process information, how much can they retain, and how they determine which facts to believe.

We need to have a clear message, both in testimony and in argument. Jurors respect lawyers who they see as helping them through the process. Making it easier for them to operate in a new environment. We must be jury-centric. We can not overload them with unnecessary detail. We need well designed exhibits, slides and memory aids.

One indispensable component of this is the theory of the case. Each side has one. It is their version of what actually happened. A theory of the case is a central theory by which you organize the facts and reasons why your client should win. It embodies facts, law, and common sense. It is your basic position on what the case is about. It needs to be comprehensive, yet easy enough for any juror to understand. Your theory of the case is your explanation of what happened and its legal significance. It also fits into the juror’s perception of how life works.

You must commit your theory of the case to writing. Putting it down on paper will force you to evaluate it and revise it as necessary. Write your theory of the case in a short paragraph.

In almost every trial, most of the facts are not disputed. The case rises or falls on the key disputes, the small number of facts we do not agree on. There will be differing eyewitness accounts, different memories of a long ago conversation, or a difference in a mental state — the difference between an accident and intentional. The theory of the case helps with these conflicts.

Building The Theory

It must include a logical narrative about what happened, be consistent with all the evidence that the jury will believe, be a legal defense, and can be summed up in a simple, concise, logical and understandable way. Here are questions to ask when developing a theory:

1. Write out the theory. It can be a paragraph or several pages.

2. Why does this work? Flyspeck it. Rebut it. See if it holds up.

3. What is the law, the elements of the crime, and how does the theory prove innocence? What is the right legal outcome of the case? Is it self-defense? Negligence? Is there proximate cause? What are the legal damages?

4. Identify the key facts. Which ones are irrefutable?

5. What facts are favorable and which ones against you?

6. What are the emotional themes? Which ones will the prosecutor use? And how will you refute them?

7. What problems with the evidence do you foresee?

The theory paints a clear picture of your case’s strengths and weaknesses. And you better have a good explanation for the weaknesses.

How Does the Theory Help You?

The theory of the case:

Directs your pre-trial investigation and motion practice;

Points out the weaknesses in your case;

Determines your voir dire questions;

Becomes the core of your opening argument;

Creates areas for cross-examination;

Determines the defense witnesses;

organizes the defense case;

acts as a checklist for the evidence needed; and

identifies the issues for, and is the thread holding, your final argument together.

What Does Murray Do Now?

We must be sure when telling the jury our theory of the case that we are putting forward something that we can prove. If like Murray’s hapless legal team we have to backtrack, then we have lost our credibility, and without credibility we have nothing. If we are not telling the jury the truth we will lose the case. Period.

So what do Murray and his lawyers do now? How do they recover, if they can, from this disaster? It is easy to criticize and say they should have known the facts of the case better or should have been more diligent in only presenting the truth to the jury. But that is water under the bridge. They better be straightforward and tell the truth about what happened. Perhaps they made a mistake. Perhaps their experts failed to properly test. Perhaps they only just discovered their theory is wrong. Tell the truth, whatever it may be, no matter how embarrassing. They must be past embarrassment. If you discover that something you have told the jury is not true, tell them, and adjust your theory to fit the truth.

I have seen several cases where lawyers have lost the jury when their carefully crafted theory turned out not to be the truth, and still they refused to change their story. They stayed the course until the bitter end. It was obvious when the jury started to question their theory. Yet with a tin ear they continued to recite the pre-packaged, memorized verse all the way down to the bottom of the Atlantic next to the Titanic.