April 25, 2013
By ELIZABETH MARCELLINO
City News Service
An attorney for Michael Jackson's personal physician appealed the doctor's involuntary manslaughter conviction on Monday, arguing prosecutors failed to prove the King of Pop was on a propofol drip the day he died and that the trial judge excluded critical testimony. Conrad Murray, who is barred from practicing medicine, was convicted in November 2011 for administering a fatal dose of the powerful anesthetic to Jackson in the bedroom of the singer's rented Holmby Hills estate on June 25, 2009. Jackson was staying in the Los Angeles area while rehearsing for a
planned London concert series, dubbed ``This Is It.”
A last-minute theory in the case offered by the prosecution's anesthesiology expert was ``absurd, improbable and unbelievable,'' and not supported by physical evidence, according to the 231-page appeal. The prosecution contended that Murray, now 60, put the pop star on a continuous drip of propofol, left his patient alone and unmonitored, and Jackson went into respiratory arrest. But defense attorney Valerie Wass maintains in the appeal that Murray had been weaning the 50-year-old Jackson off propofol for three days and only gave him a small injection -- 25 milligrams -- to help him sleep before putting him on a saline drip. When Murray left the room, Jackson, desperate for sleep, self-injected a second dose, leading to cardiac arrest, Wass argued.
The appeal cites technical details from toxicology reports to support the defense contention that a quick heart attack, rather than respiratory arrest, was the cause of the performer's death. The prosecution's theory could have ``been blown apart'' by a forensic analysis of a 100-milliliter bottle that would have to contain both propofol
and the painkiller lidocaine to uphold prosecutors' arguments, Wass contended. Defense attorneys asked for that analysis 11 days after the jury returned its verdict. But Los Angeles Superior Court Judge Michael Pastor denied the motion, saying the bottle had ``been around since the inception of the case.''
But the coroner's report said the bottle was empty, Wass argued in her appeal. It wasn't until the prosecution presented a new theory during testimony by a final rebuttal witness that the composition of drugs in the bottle became relevant. The prosecution's ``11th-hour tactic left the defense in a position where it had no real opportunity to present any effective defense to this novel theory,'' according to the appeal.
``As a result, the jury was left with the impression the rebuttal theory was a viable one, when in fact, it was entirely unsubstantiated.''
Wass said prosecutors withdrew their request for more than $101 million in restitution after the defense filed another motion to have the bottle tested during the restitution phase of the case. Prosecutors told the jury that even if Jackson had injected himself, Murray was responsible for his death because the physician should have realized that Jackson might do so if left alone with access to the drug. But according to Wass' appeal, Jackson had shown he understood the need to be monitored while taking the powerful drug, so Murray couldn't have predicted the pop star would use a syringe on his own.
The appeal also argues that Murray's trial co-counsel, J. Michael Flanagan, failed to adequately cross-examine the expert rebuttal witness or call for timely testing of the bottle. Wass and Flanagan were Murray's co-counsel on the appeal -- and were also romantically involved, according to court documents filed in another case -- until Flanagan resigned and sought a restraining order against Wass. Wass is under court order to stay at least 200 yards away from her former colleague.
The appeal in the Murray case also raised concerns about evidence not admitted at trial, including testimony about Jackson's use of Demerol and the pop icon's financial condition.
``The jury, however, was not allowed to learn that when Jackson died, he owed (concert promoter) AEG close to $40 million, there were more than 30 lawsuits pending against him and he owed millions of dollars to the IRS,'' the appeal argued.
That information showed that the performer had ``the weight of the world on his shoulders'' and was desperate to get enough sleep to be able to perform and fulfill his upcoming concert commitment, according to the appeal. Wass cited an email from concert director Kenneth Ortega to AEG Live CEO Brandon Phillips to illustrate Jackson's desperate state of mind.
``It would shatter him, break his heart if we pulled the plug,'' Ortega wrote.
``He is terribly frightened it's all going to go away. He asked me repeatedly tonight if I was going to leave him. ... He was like a lost boy. There still may be a chance he can rise to the occasion if we get him the help he needs.''
Finally, the appeal contends that the jury should have been sequestered to ensure a fair trial and that the court imposed a harsher sentence in order to make an example of a defendant in a high-profile case. Murray, convicted Nov. 7, 2011, is serving a four-year sentence in Men's Central Jail, but is expected to be released Oct. 28, according to the Sheriff's Department's inmate information website.