Lawyers representing Michael Jackson’s doctor have abandoned the defence theory that the pop megastar swallowed the drug that killed him.
The abrupt shift in strategy that potentially undermines the defence case came after Conrad Murray’s lawyers learned that their claim – that the 50-year-old singer swallowed the anaesthetic propofol while Murray was out of the room - could not be supported with scientific evidence.
The developments, along with a medical expert’s repudiation of Murray’s medical skills, suggested that the defence must recoup significant lost ground in its bid to acquit him of involuntary manslaughter in Jackson’s death in June 2009. Murray, on trial in Los Angeles, denies the charge.
It was not clear whether the defence would still argue that Jackson gave himself a dose of the drug in some other way, such as injecting it into an IV tube that was sending the drug into him.
“This is potentially devastating for the defence,” said Manny Medrano, a former federal prosecutor who now practises criminal defence.
Since the defence proposed in opening statements that Jackson may have self-administered propofol, he said, “that will become the elephant in the room for jurors”.
Mr Medrano said the 11th-hour switch showed “a lack of preparation and failure to really think the defence theory through”.
Judge Michael Pastor and prosecutor David Walgren appeared stunned when defence lawyer Michael Flanagan arose in a hearing outside the jury’s presence and announced the decision.
“We are not going to assert at any point in this trial that Michael Jackson at any time orally ingested propofol,” said Mr Flanagan, who revealed he had commissioned his own study about oral ingestion of the drug.
He said the study concluded that it would not be absorbed into the body when ingested.
The defence first offered the theory that Jackson swallowed the fatal dose at last year’s preliminary hearing. Both in and out of court, lawyers suggested that the singer may have poured some into fruit juice and drank it. But experts told the court this week that the theory was unreasonable.
Jurors have seen charts which note that a small amount of propofol was found in Jackson’s stomach, but Mr Flanagan told the judge yesterday the method of oral ingestion was not specifically mentioned in openings.
Mr Flanagan’s recent questions to witnesses indicated that he might now say that Jackson swallowed pills on his bedside table, specifically the sedative lorazepam. If they do focus on the sedative, they would be challenging the coroner’s ruling that propofol killed the singer.
Moments after Mr Flanagan’s announcement, the jury was reconvened and a prosecution expert took the stand, saying that Murray was guilty of extreme deviation from the standard of medical care practised by physicians.
Murray was “responsible” for Jackson’s death, said Dr Alon Steinberg, a cardiologist who evaluated Murray’s actions for the California Medical Board.
“If all of these deviations didn’t happen, Michael Jackson might have been alive,” he said.
Jurors listened and took notes as he told of six “extreme deviations” by Murray, including using propofol, a powerful anaesthetic normally given through an IV in hospital settings, to treat insomnia.
“I have never heard of it,” Dr Steinberg said.
Sleep expert Dr Nader Kamanger said Murray did not appear to take any steps to diagnose why Jackson could not sleep and agreed that propofol should not be used as a sleep aid.
“It’s beyond a departure from the standard of care into something unfathomable,” he said.
Dr Steinberg called Murray’s behaviour “strange” and said the single most important thing he could have done to save Jackson was to call emergency services when he found the singer not breathing.
According to Murray’s own statement to police, he waited at least 20 minutes before telling a security guard to call emergency services. In the meantime, he said, he was doing CPR. But Dr Steinberg said he was doing it wrong.
Legal experts had questioned the defence decision early on to allow Murray to talk to detectives. His three-hour interview was played for jurors earlier this week and it turned out that Dr Steinberg’s assessment came from that interview.
Dr Steinberg said he based his testimony and his evaluation of Murray for the board on “his own words”.
Defense lawyer Thomas Mesereau, who won Jackson’s acquittal of child molestation charges and has been following this case closely, said it was a “very, very strong day” for the prosecution.
“But remember the trial isn’t over till it’s over,” he said. “The defence hasn’t called a single witness yet.”
Defense lawyers had claimed that Murray is not to blame for Jackson’s death because the singer, desperate for sleep, probably gave himself an extra dose when he was out of the room. They also suggested at one point that Jackson could have injected the drug into his IV line.
But the coroner told the court that that was an unreasonable theory given that he was already groggy from sleep medication and the dose of propofol Murray had administered.