LOS ANGELES (AP) — Dr. Conrad
Murray's defense on Wednesday abandoned a theory that it touted for over a year
that Michael Jackson swallowed the drug that killed him, an abrupt shift in
strategy that potentially undermines its case.
The reason was clear: The defense had
learned that its claim that the singer swallowed the anesthetic propofol while
Murray was out of the room in June 2009 can't be supported with scientific
evidence.
The developments, along with a
medical expert's repudiation of Murray's medical skills, suggested that the
defense must recoup significant lost ground in its bid to acquit him of
involuntary manslaughter in Jackson's death.
Murray has pleaded not guilty. It was
not clear whether the defense would still argue that Jackson gave himself a
dose of the drug some other way, such as injecting it into an IV tube that was
sending the drug into him.
"This is potentially devastating
for the defense," said Manny Medrano, a former federal prosecutor who now
practices criminal defense. Since the defense proposed in opening statements
that Jackson may have self-administered propofol, he said, "that will
become the elephant in the room for jurors."
Medrano said the 11th-hour switch
shows "a lack of preparation and failure to really think the defense
theory through."
Superior Court Judge Michael Pastor
and prosecutor David Walgren appeared stunned when attorney Michael Flanagan
arose in a hearing outside the jury's presence and announced the defense's
decision.
"We are not going to assert at
any point in this trial that Michael Jackson at any time orally ingested
propofol," said 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 defense first offered the theory
that Jackson swallowed the fatal dose at last year's preliminary hearing. Both
in and out of court, attorneys suggested that the singer may have poured some
into fruit juice and drank it. Experts have testified 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 Flanagan
told the judge on Wednesday the method of oral ingestion was not specifically
mentioned in openings.
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 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 practiced by physicians.
Murray was "responsible"
for Jackson's death, said Dr. Alon Steinberg, a cardiologist from Ventura, Calif.,
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
enumerated six "extreme deviations" by Murray, including using
propofol, a powerful anesthetic normally given through an IV in hospital
settings, to treat insomnia.
"I have never heard of it,"
he said.
Dr. Nader Kamanger, a UCLA sleep
expert, testified later Wednesday that Murray didn't appear to take any steps
to diagnose why Jackson couldn't sleep. He agreed that propofol shouldn't be
used as a sleep aid.
"It's beyond a departure from
the standard of care into something unfathomable," he said.
Kamanger, who walked jurors through a
guide to various causes of insomnia, said Jackson should have been tested
physically and psychologically before any drugs were given. He was to return
for cross-examination on Thursday.
"Every minute counts," he
said, adding that even a five-minute delay in calling could be the difference
between life and death.
According to Murray's own statement to
police, he waited at least 20 minutes before telling a security guard to call
9-1-1. In the meantime, he said, he was doing CPR. Steinberg said he was doing
it wrong.
Legal experts had questioned the
defense decision early on to allow Murray to talk to police detectives. His
three-hour interview was played for jurors earlier this week and it turned out
that Steinberg's assessment came from that interview.
Steinberg said he based his testimony
and his evaluation of Murray for the board on "his own words."
In an odd twist, this led Flanagan to
suggest during cross examination that Murray may have lied when he said he was
gone from Jackson's side for only two minutes.
"Do you know for a fact Dr.
Murray was gone longer than two minutes?" Flanagan asked.
"No" said the witness, who
stressed he was relying on Murray's account.
When Steinberg said he believed
Jackson was "savable" because Murray detected a pulse, the attorney
asked, "How do you know that Dr. Murray checked the pulse?"
"Because he described it,"
Steinberg said.
Defense attorney Thomas Mesereau Jr.,
who won Jackson's acquittal of molestation charges and has been following the
case closely, said it was a "very, very strong day" for the
prosecution and the defense cross examination merely gave the expert a chance
to reinforce his opinions.
"But remember the trial isn't
over till it's over," he said. "The defense hasn't called a single
witness yet."
Mesereau said the abandonment of the
defense's central theory shows that "they're having a difficult time
coming up with a viable explanation of why or how Michael Jackson would have
caused his own death."
The defense's announcement came a day
after a coroner testified that it was unreasonable to believe that Jackson
could have swallowed the drug.
Defense attorneys have 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.
The coroner said that that was an
unreasonable theory given that he was already groggy from sleep medication and
the dose of propofol Murray had administered.
Loyola Law School professor Stan
Goldman said the lorazepam theory might be sufficient to give jurors an element
of reasonable doubt.
"I think the defense had a
better argument that Jackson got up and took all these pills and that in
combination with whatever else was in his system did him in," said
Goldman. If the jury is looking to the defense for reasonable doubt and want to
acquit Murray, he said, that might help.
"It's not a lot to hang its hat
on," he said, "but in a lot of criminal cases you have nothing."
AP Entertainment Writer Anthony
McCartney contributed to this report.
Copyright 2011 The Associated Press.
(AP Photo/Robyn Beck, Pool)
