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.
The Jackson family made a statement: “As Michael’s parents we could never have imagined that we would live to witness his passing. It is simply against the natural order of things,” the family said. “As his brothers and sisters, we will never be able to hold, laugh or perform again with our brother Michael. And as his children, we will grow up without a father, our best friend, our playmate and our dad.”
The prosecutor argued that Murray was “playing Russian roulette with Michael Jackson’s life every single night,” by using the surgical anesthetic Propofol to put him to sleep in “a reckless, obscene manner.” Murray showed his lack of remorse or acceptance of his personal responsibility in an interview nine days before he was found guilty, “I don’t feel guilty because I did not do anything wrong,” Murray said in the documentary aired days after he was convicted.
The defense was entirely unconvincing arguing why Murray should get probation. They didn’t forcefully argue all the good things Murray did in his professional career and life. Murray had plently to talk about, but I think the defense over-relied on their sentencing memo instead of argument. Chernoff did argue that Murray will suffer the rest of his life because of the loss of his medical career and the stigma of the conviction, which is fine, but he went on to say: “Whether he is a barista the rest of his life, whether he is a greeter at Walmart, he’s still going to be the man who killed Michael Jackson for the rest of his life.” Brilliant.
Instead of an eloquent pitch, they relied on their sentencing memo which included 34 letters from relatives, friends and former patients who described Murray’s compassion as a doctor, including accepting lower payments from his mostly poor patients.
Defense attorney Ed Chernoff implored Pastor to look at Murray’s life and give him credit for a career of good works. “I do wonder whether the court considers the book of a man’s life, not just one chapter.” Unfortunately for Chernoff, the judge gave a pretty good rebuttal to the book analogy. “I accept Mr. Chernoff’s invitation to read the whole book of Dr. Murray’s life. But I also read the book of Michael Jackson’s life, including the sad final chapter of Dr. Murray’s treatment of Michael Jackson.” Once again a lawyer fell into the trap of using a good analogy only to have it turned against him.
Then comes the judge who forcefully and eloquently, but in my opinion not judiciously, throws the book (literally and figuratively) at Dr. Murray. It sounded more like the prosecution’s final argument rather than an impartial jurist following the law. In fact it was better than the prosecution’s argument. I got the impression that the judge was using Murray as an example to other doctors out there and he was clearly playing to TV and the cameras.
Murray sat quietly in his chair dressed in a gray suit and a purple paisley tie and did not exhibit any real emotion. I could see him grinding his teeth at times. It must have been very uncomfortable for him sitting there taking a vicious beating, but he brought some of it upon himself. How could he talk in the documentary yet say nothing at his sentencing? You can’t have it both ways. So some of this was a self-inflicted wound.
Here is the judge’s final argument:
“One of the most difficult jobs of judging is to impose a just sentence. It is complicated and the fact it is discretionary makes it all the more difficult. He didn’t act deliberately. Even the prosecution admits he didn’t intend Jackson to die. I must invoke my experience to decide a proper sentence. Some people feel he is a saint, others think he is a sinner. He is a human being.”
[So far this sounded good for Murray. But typically with judges, when they start by saying something nice, the rest is disastrous. I guess they want to throw you a bone, or try to show they are being even-handed. Not much chance of that with Judge Pastor because right after this seemingly benign introduction he brings down the hammer on Murray.]
“He stands guilty of the death of another human being. One based on criminal negligence. The standard is criminal and gross negligence. The jury found him guilty in the criminal negligence which caused the death of Jackson. The standard of criminal negligence was found by the jury. It was not a medical malpractice case. It is a criminal homicide case. The jury found beyond a reasonable doubt that the defendant caused his death. Criminal negligence is defined as more than ordinary carelessness or mistake of judgment. It is acting in a reckless way that creates a high risk of death. A reasonable person would know it would create such a risk. This is so different from how an ordinary person would act. Disregard of human life or indifference of the other’s life. Don’t treat this cavalierly. You can’t say oh well it just happened. Or if not Murray then someone else would have done it. I disassociate myself from this idea. That is an insult to the medical profession. Jackson died because of the actions and failures of Dr. Murray. Also Michael Jackson was not exclusively at fault in his death.
I am impressed by submissions of family and friends of Murray. But I have also read the book of Jackson’s life. The most significant chapter is the treatment of Jackson. Jackson died not due to isolated or one off instance. It was a totality of circumstances. It wasn’t a mistake of an accident. It was a series of decisions made by Murray which violated the Hippocratic oath and medical violations. Those overcome his treatment of others and his good deeds. He created a set of circumstances that created horrible medicine. Medical madness. Violated his sworn obligations. All for money.
I don’t look to one isolated instance. Murray engaged in a recurring continuous pattern of deceit lies and to assist himself. He did it over an extended period of time. We heard six weeks of testimony of astounding circumstances. The lies from the inception. Ordering the Propofol in staggering quantities. The lies to the pharmacist. Intentional deception to those associated with Jackson, his staff, his production crew and professional associates. The continuing series of lies to security and staff at critical times. Lies to the paramedics, the medical personnel, all designed to deceive, to cover-up for himself. All efforts to subvert the process. The cover-up using distortion and lies to law enforcement.
If you look at the crime of involuntary manslaughter, you could say things went terribly wrong and tragic. But look at the totality of the circumstances. The long-standing failure of character to serve his patient. We must be offended by that.”
[Here is the smoking gun, the one piece of evidence that outraged the judge. He accuses Murray of blackmail even though there was no proof.]
“Of everything I saw and heard. One stands out. The recording of Jackson by his trusted doctor. I have repeatedly asked myself why it happened. There might have been a justifiable reason. By unreasonable. That tape was his insurance policy. To record his patient at his most vulnerable point. I can’t imagine that happening to any of us. I can’t help but wonder if conflict between them what he would have done with it. If the choice to release to media to use against Jackson.”
[The defense never made any objection to this finding. There is no evidence to support this inference he makes. After the sentencing, in an interview, defense lawyer Flanagan said the tape had been erased and reconstructed by the police. Thus it wasn’t being saved for blackmail as Judge Pastor claims. This is one of the most damning factors which drove the sentence, yet it stood without comment? How come Flanagan was willing to object in the corridor but not in court? To compound this, one of the jurors said in an interview airing Tuesday on HLN’s “Issues with Jane Velez-Mitchell,” that the recording did not play into the verdict. “We talked about that audio a little bit,” Debbie Franklin, “Juror 5,” said, but “We didn’t really understand why it was presented. I still do not understand what that was about.” So the judge used an aggravating factor not even considered by the jury.]
“That failure of character was compounded by his later actions. A betrayal of trust and conscience. An undermining of his role as a health care professional. We revere doctors and we should. They work hard and sacrifice. Murray did that, but at some point it went terribly wrong. He betrayed his oath. So I look at the totality. I look at the whole book and this chapter which disturbs me the most.
The documentary production of Murray didn’t affect me, when he says I don’t feel guilty. Even Mr. Chernoff acknowledges fault here but not from Murray. Not to the Jackson staff. Not with paramedics. Not with Drs. Cooper and Wynn who were on a life-saving mission. You didn’t hear it with police detectives. And certainly didn’t hear it in the documentary. He said he feels betrayed by Jackson. Talk about blaming the victim. He is outraged against the decedent. Murray says it like he is a bystander. Not his doctor. Those are facts which cause me concern.”
[The judge goes to great lengths to explain why probation is out of the question.]
“Probation is when some responsibility and some remorse. Why give probation to someone offended by the idea he is even before the court. You can’t have probation without rehabilitation. I looked valiantly for efforts to satisfy myself that he was suitable for probation. But I am convinced I couldn’t find any. I decline probation for a host of reasons. I acknowledge he helped the community and other patients. But he violated trust and confidence of Jackson every night. Jackson as a patient was vulnerable. He put him in that position. It was a sophisticated scheme to obtain proceeds. He lied to pharmacists. He concocted a story. He kept no medical records. He allowed his personal life to interfere with his professional life. He lied to everyone involved. Engaged in personal matters why he should be looking after a patient. He abandoned his patient. This is an unacceptable number of departures. He undermined the physician-patient relationship. This is a blot and a scrouce on the profession. Not a single isolated mistake. A series of gross deviations. So based on that, he is not candidate for probation. The request is denied.”
[Now the judge explains he wants to punish Murray for more than the law allows but can’t do it. He is signaling to the public that his hands are tied and he can’t do more but he assures if he could do more he would. This is the problem with putting judges on TV! This guy sounds like he is running for re-election. Or perhaps he is auditioning for one of those television judge shows. He wants to be the male Judge Judy.]
“So what is the appropriate period of incarceration. I have many alternatives, but one the court doesn’t have is the authority to put him in state prison. I will follow the law. The Legislature of this state signed a Realignment Act that declares certain offenses, while felonies, not to be served in state prison, and involuntary manslaughter is one of those. So no state prison. I can’t do it. I have a triad of possible sentences. The appropriate term is the high term of four years. He abandoned his patient, he created a vulnerable patient, gave him dangerous drugs, over an extended period of time, he lied to cover up, he violated the patient’s trust. And he absolutely has no sense of remorse or fault. He is and remains dangerous. He might do something dangerous. He is so reckless. And in his subsequent conduct after prison he will be a danger to the community.
This is worse than other cases of involuntary manslaughter. This shows a need for punishment. This is clear, experimental medicine will not be tolerated. Jackson was an experiment. He should have walked away and said no. This was money for medicine madness and won’t be tolerated by me. This sentence is to be served in the Los Angeles County Jail.
I am concerned about restitution request in this case. Not often asked for $100 million based on a three-line statement in an email. So I order that there should be appropriate restitution to the family and children. This should be determined at a later hearing with more detailed information.”
[The defense also made a mistake here. They should have objected to any continuance of the restitution hearing. Obviously the prosecution wasn’t ready to prove up any of the dollar figures they wanted. Why give them time to put it together? This was the date set for it, so demand it go forward or drop it. By allowing them more time, the defense only helped them get time to adequately prepare.]
What can we gather from watching this hearing? Obviously, Dr. Murray hurt himself with a stance and attitude which seemed arrogant. He failed to acknowledge any fault or remorse. He didn’t even speak at the sentencing. The documentary hurt him badly. He seemed to blame the victim. He expressed no sympathy to the family or to Jackson. Judges are human beings. They want to see some taking of responsibility, to say you did something wrong and learned from it. Murray could have done this without admitting guilt. This is a good lesson in getting the client to show his humanity during the process. Sometimes this can be hard, but it pays dividends. This doesn’t mean the client has to express feelings of guilt. But a man died and he should express sadness over that.
Flanagan said afterwards that everyone can draw their own reactions to what the judge said. He said you can consider it as bias, but I have nothing to say about it. Once again a “Profile in Courage” by the defense lawyers. Why not confront Judge Pastor with this observation after the sentencing? Flanagan said the tape had been erased and reconstructed by the police, so the idea that he was using it as blackmail is absurd. Another good point. And he scoffed at the danger finding. I agree with that as well. A real stretch by the judge. But once again silence by the defense team in court and on the record.
Note: A probation report released after sentencing said Murray was listed as suicidal and mentally disturbed in jail records before his sentencing. Why didn’t the defense use this? It is certainly better than the barista comment. Also it could explain why Murray remained silent at the hearing and it would have made him more sympathetic. I just don’t understand this failure, but it is one of many.