Dr. Murray’s attorneys made a bold move in their opening argument by promising the jury they would prove that Michael Jackson self-administered lethal doses of Propofol and Lorazepam. The linchpin of the defense, at least as set out in the opening argument, is that Jackson killed himself by taking the drugs when Murray left the room. Prosecutors contend Murray used a drip bag as an IV to administer the Propofol to Jackson; the defense counters Murray gave Jackson only 25 ml of Propofol via syringe and he took the rest on his own.
Murray acknowledged giving Jackson two injections, but his defense contends the singer later downed a handful of Lorazepam pills without Murray’s knowledge. Defense attorney Ed Chernoff told the jury that Jackson self-administered an extra dose of Propofol and Lorazepam and this “created a perfect storm in his body, that killed him instantly.” “No CPR, nor doctor, no paramedic, no machine was going to revive Michael Jackson. He died so rapidly, he didn’t even have time to close his eyes.”
So the defense made a concrete promise in their opening and after the testimony of Dan Anderson, a toxicologist at the LA County Coroner’s office, and it’s beginning to look that this early error could doom his defense. More importantly for us the damage came not on direct examination by the prosecutor but from a badly mangled cross-examination by defense lawyer J. Michael Flanagan.
In a painstakingly slow cross-examination filled with highly technical terms such as “ion trapping” and “bioavailability,” Flanagan repeatedly suggested there was no other explanation how the minuscule amount of Lorazepam found in Jackson’s stomach got there other than by Jackson taking it himself.
Here is my transcript of part of Flanagan’s cross on this issue. I apologize for the chopped up quality of this, but it is due to Flanagan and HLN’s annoying commercial breaks. He started in this segment questioning about Propofol then moved on to Lorazepam:
Q. Be an indication the Propofol had been in there for just a short time?
Q. If the person had been on a drip, say for an hour, you would expect the body to be in equilibrium wouldn’t you?
A. If the person was on a drip, I would expect the Propofol to be in the drip bag, so I am not understanding the question.
Q. I am talking about the body, we will get back to the drip bag later. You would expect if the person was on a drip for an hour or so that the blood levels, the vitreous, and even the urine, everything would kind of reach an equilibrium wouldn’t it?
A. I think I said early that I don’t know how Propofol would redistribute through the urine or the vitreous. So I don’t know if it is common to find a low amount in the vitreous.
Q. Okay, let’s just talk about heart blood, hospital blood and femoral blood, you expect these to be in equilibrium if the person was on a drip wouldn’t you?
A. I don’t know.
[HLN had a commercial here and during it Flanagan obviously shifted from questioning about Propofol to questioning about Lorazepam. HLN keeps interrupting the coverage so it is easy to lose important points.]
Q. The concentration compared to the heart blood and femoral blood is concentrated four times as much in the stomach as it is in the blood isn’t it?
A. Yes, 600 number to 169 number, yes.
Q. Do you think that is an important number?
A. Not really, no.
Q. Isn’t that consistent with oral absorption of Lorazepam?
Q. Why do you say that?
A. Just because you analyze the stomach contents and find a drug in the stomach contents doesn’t necessarily mean it was oral administration. We find plenty of drugs in people’s system who smoke it, IV it, what have you, and you will find the drug actually in the stomach contents at small levels. That is a common occurrence. It is known as ion trapping; the drug can get trapped in the acidic environment of your stomach.
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Q. And you are saying that level of Lorazepam in the stomach came from the blood?
First no competent lawyer asks a “why” question on cross examination. There are two narrow exceptions to this rule: either you know exactly what the witness’ answer will be; or you don’t care about the answer. Neither of these exceptions apply here. Anderson is a professional witness. He appears for the prosecution in many trials. He knows the science better than Flanagan. Yet Flanagan asks him “why,” which allows him to lecture the jury on a critical point and it kills the defense.
The defense is that Jackson orally took both these drugs when Murray was out of the room. Chernoff said in the opening that evidence from Jackson’s stomach would prove this claim. Thus, the first real evidence about the source of the drugs in the stomach is crucial. The jury will remember this, especially since it happened on cross-examination and not direct. They intuitively know that the direct is carefully scripted by the prosecution but the cross examination is the real test of the witnesses testimony.
To assess the damage, see how strong Chernoff argued oral self-administration in his opening:
“You will be asked to determine who caused the death. The science will show. During the ten hours Jackson frustrated because couldn’t sleep. Wouldn’t give him drug. He did an act that caused his own death. The science will show you that Jackson swallowed Lorazapam. That is enough to put 6 of you to sleep. He did it when Murray not around. When he left the room Jackson took Propofol. Created a perfect storm in his body which killed him instantly. When Murray came back in no one could revive him. He died instantly rapidly, didn’t even close his eyes.”
“Just before he died, Jackson swallowed eight bottles of a drug called Lorazepam, enough to knock out six adults. Chernoff also asserted that Jackson gave himself a dose of Propofol on top of that, while Murray was out of the room, creating a “perfect storm in his body that killed him instantly”.
“The science will prove that there had to have been more Propofol delivered, provided, taken by Michael Jackson after the period of time (Murray) left that room,” the extra delivery of that Propofol “was through Michael Jackson himself.”
“Lorazapam. High amounts in Jackson. Dr. gave 4 mgs. Have to be every 30 minutes for five hours. How did he get it in his system? Stomach contents. They didn’t test it so we did. Four times greater in stomach. Only way possible. He was swallowing it.”
“He wanted to sleep. Tried to sleep for 10 hours. The doctor would not give the Propofol that he wanted so he swallowed 8 without permission. Self administered an additional dose. It killed him instantly. No way to save him. Just before he died, Jackson swallowed eight bottles of a drug called Lorazepam, enough to knock out six adults. Jackson gave himself a dose of Propofol on top of that, while Murray was out of the room, creating a “perfect storm in his body that killed him instantly”.
“There was no CPR, no doctor, no paramedic, no machine that was going to revive Michael Jackson,” Chernoff said. “He died so rapidly, so instantly, he didn’t have time to close his eyes.”
“The whole thing is tragic, but the evidence is not going to show that Dr. Murray did it.”
Clearly the defense is highly committed to the swallowing claim. If they lose on this point, they likely lose the case. So why did Flanagan risk losing his main defense with a “why” question on cross? Perhaps he was frustrated with his lack of success with Anderson. He may have momentarily lost control and spoke without thinking. It is hard to maintain discipline while standing on one’s feet questioning a hostile witness, so I want simple rules, ones that I can do without conscious thought. Because I don’t have the time to think about the rules. I am juggling so many other things. My concentration is on the witness. The words, body language, facial expressions. The jury. My opponent. The judge. So it is a little much to think about exotic rules of cross examination like loops, double loops, spontaneous loops and trilogies that the trial advocacy books suggest.
So I have one iron clad rule to follow on cross. A rule forged in iron so I never forget it. I set out this rule in my book Black’s Law: Cross examination is a series of statements by the lawyer occasionally interrupted by a “yes” from the witness. If one always follows this axiom, one will always remain in control and not allow damaging lectures by a hostile witness. And you will avoid self-inflicted wounds like this.
The good news for the defense is that Flanagan bounced back with the next scientific witness. Dr. Christopher Rogers, LA Medical Examiner, under direct examination, testified that Michael Jackson did not self-administer the lethal dose of Propofol because there was no evidence that Michael Jackson gave himself the fatal dose of the drug and a more likely scenario was that Murray misjudged how much Propofol he gave the entertainer. He said a number of factors caused him to find the death a homicide. Among them were Murray’s statements to police and the lack of sophisticated medical equipment in Jackson’s bedroom.
“I think it would be easy under the circumstances for the doctor to estimate wrong and give too much Propofol,” Rogers said.
But Flanagan redeemed himself on cross. Flanagan pushed the defense theory that Jackson could have swallowed up to 8 pills of Lorazepam causing his own death. Flanagan focused on the contents of Jackson’s stomach, which included around 70 grams of a dark liquid that Dr. Rogers conceded was not tested by the toxicologist:
Q. It was just a dark liquid, wasn’t it?
A. Yes . . . it was not obviously blood.
Q. But there could have been some blood in it?
Q. And there could have been some fruit juice in it?
Dr. Rogers also conceded that just because he observed no capsules or pills in Jackson’s stomach contents doesn’t necessarily mean that there were no drugs in his system. The only way to know for sure would have been to do a toxicological analysis, which was not performed.
[Flanagan used a defense exhibit showing the concentration of Lorazepam in Jackson’s stomach.]
Q. The concentration in the stomach is about four times that concentration that’s in the femoral artery, isn’t it?
A. Yes . . . I would think there has to be some oral Lorazepam taken somewhere along the line.
Flanagan gets him to corroborate the defense theory that Lorazepam was taken orally and, of course, the defense will say that Jackson did it himself. Redemption of a sort, but it was unnecessary.