Conrad Murray Appeal 04/22/13

IN THE COURT OF APPEAL OF THE STATE CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SEVEN

THE PEOPLE OF THE STATE OF CALIFORNIA, No. B237677
Plaintiff and Respondent,
v.
CONRAD ROBERT MURRAY,
Defendant and Appellant.
Los Angeles County Superior Court No. SA073164
The Honorable Michael Pastor, Judge
APPELLANTS OPENING BRIEF
Valerie G. Wass
Attorney at Law
State Bar No. 100445
crimappeals@gmail.com
556 S. Fair Oaks Ave., Suite 9
Pasadena, CA 91105
(626) 797-1099
Counsel for Appellant
CONRAD ROBERT MURRAY
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii
APPELLANTS OPENING BRIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF APPEALABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Prosecution Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Michael Jacksons Residence & Staff . . . . . . . . . . . . . . . . . . 3
Jacksons This Is It Tour . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Appellant Was Hired As Jacksons Personal
Physician . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Tour Rehearsals & Concern About Jackson . . . . . . . . . . . . . 5
The Events of June 25th . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
June 25th Search of Carolwood . . . . . . . . . . . . . . . . . . . . . 14
Appellants Police Interview . . . . . . . . . . . . . . . . . . . . . . . . 17
Appellants Medical Practices . . . . . . . . . . . . . . . . . . . . . . 27
Appellants Girlfriend - Nicole Alvarez . . . . . . . . . . . . . . . 28
Appellants Drug & Medical Supply Orders in
2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Appellants Phone Records From June 25th . . . . . . . . . . . 29
Appellants Cell Phones Were Recovered . . . . . . . . . . . . . 30
ii
TABLE OF CONTENTS
Page
The May 10, 2009 iTalk Recording . . . . . . . . . . . . . . . . . . . 30
Searches of Appellants Vehicle, Residences,
Offices & Storage Units . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
The Autopsy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Toxicology Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Fingerprint Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Expert Medical Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Expert Opinions re Self-Administration of Drugs
By Jackson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Defense Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Character Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Urine & Gastric Samples Were Tested for Lorazepam . . . . 52
Dr. Paul White . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Dr. Allan Metzger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Cherilyn Lee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Brandon Phillips . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Dr. Robert Waldman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Rebuttal Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
iii
TABLE OF CONTENTS
Page
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
I. APPELLANT S CONVI CTI ON FOR
INVOLUNTARY MANSLAUGHTER VIOLATES
HIS STATE AND FEDERAL CONSTITUTIONAL
RIGHT TO DUE PROCESS BECAUSE THE
EVIDENCE FAILS TO ESTABLISH THE
ELEMENTS OF THE OFFENSE . . . . . . . . . . . . . . . . . . . 64
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
B. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
C. The Offense of Involuntary
Manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

D. The Jury Was Instructed On Two
Different Theories of Involuntary
Manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
E. The Prosecution Failed to Establish That
Any Act of Appellant or His Failure to
Perform a Legal Duty Was a Causative
Factor in Jacksons Death . . . . . . . . . . . . . . . . . . . . . . 68
1. The Evidence Did Not
Es t a b l i s h Ap p e l l a n t
Administered Propofol to
Jackson With Criminal
Negligence and/or That Said
Act Caused or Was a
Substantial Factor in Causing
Jacksons Death . . . . . . . . . . . . . . . . . . . . . . . . . 68
a. The Evidence
Failed to Establish
Jackson Was on a
Propofol Drip on
June 25th . . . . . . . . . . . . . . . . . . . . . . . . . 69
iv
TABLE OF CONTENTS
Page
b. Appellants Act
of Administering
P r o p o f o l t o
Jackson Was Not
A Ca u s a t i v e
F a c t o r I n
Jacksons Death . . . . . . . . . . . . . . . . . . . . . 87
c. It Was Not
R e a s o n a b l y
Foreseeable That
Jackson Would
Self-Administer
Propofol Outside
the Presence of
Appellant . . . . . . . . . . . . . . . . . . . . . . . . . . 92
2. The Prosecution Did Not
Establish That Appellant
Failed to Perform His Legal
Duty to Treat and Care for
Jackson and/or That Such
Failure Caused the Death or
Was a Substantial Factor in
Causing Jacksons Death . . . . . . . . . . . . . . . . . . 99
F. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
II. THE TRIAL COURT ERRED BY DENYING THE
DEFENSE POST-VERDICT MOTION TO TEST
THE RESIDUE IN THE EXHIBIT 30 PROPOFOL
BOTTLE BECAUSE THE RESULTS OF THE
PROPOSED TESTING COULD REFUTE THE
PROSECUTIONS FINAL THEORY OFFERED
DURING REBUTTAL AND COULD
CONSTITUTE NEWLY DISCOVERED
EXCULPATORY EVIDENCE . . . . . . . . . . . . . . . . . . . . . 102
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
v
TABLE OF CONTENTS
Page
B. Relevant Procedural History . . . . . . . . . . . . . . . . . . . 102
1. The Written Motion . . . . . . . . . . . . . . . . . . . . . 102
2. The Hearing & the Courts
Ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
3. The Defense Filed a Second
Motion to Test the Exhibit 30
Residue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
C. The Prosecution Contended That
Appellant Administered a Propofol
Infusion to Jackson From the Exhibit 30
Bottle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
1. Exhibit 30 Is a Significant
Piece of Evidence . . . . . . . . . . . . . . . . . . . . . . . 106
2. During Rebut t al t he
Prosecution Presented a New
Theory Regarding the
Contents of Exhibit 30 . . . . . . . . . . . . . . . . . . . 108
3. During Closing Argument the
Prosecutor Contended the
Evidence Supported Shafers
Propofol Infusion Theory . . . . . . . . . . . . . . . . 109
D. The Trial Court Abused Its Discretion
By Denying the Defense Motion to Test
the Exhibit 30 Residue . . . . . . . . . . . . . . . . . . . . . . . 109
E. Appellants Federal Constitutional
Rights to Due Process, a Fair Trial, and
to Present a Defense Were Violated by
the Trial Courts Denial of Appellants
Motion to Test the Residue in Exhibit
30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
vi
TABLE OF CONTENTS
Page
F. Appellant Was Prejudiced By The Trial
Courts Ruling & Reversal is Required . . . . . . . . . . 115
III. APPELLANT WAS DENI ED HI S
CONSTITUTIONAL RIGHT TO THE
EFFECTIVE ASSISTANCE OF COUNSEL BY
THE FAILURE OF HIS TRIAL COUNSEL J.
MICHAEL FLANAGAN TO ADEQUATELY
CROSS-EXAMINE SHAFER DURING
REBUTTAL AND/OR BY HIS DEFENSE
TEAMS FAILURE TO MAKE A TIMELY
AND/OR ADEQUATE MOTION FOR FORENSIC
TESTING OF THE RESIDUE IN THE EXHIBIT
30 PROPOFOL BOTTLE . . . . . . . . . . . . . . . . . . . . . . . . . 117
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
B. A Defendant in a Criminal Case Has a
Federal and State Constitutional Right to
Effective Assistance of Counsel . . . . . . . . . . . . . . . . 118
C. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . 120
D. Relevant Procedural History . . . . . . . . . . . . . . . . . . . 120
E. Appel l ant Was Deni ed Hi s
Constitutional Right to Effective
Assistance of Counsel By Flanagans
Inadequate Cross-Examination of Shafer
During Rebuttal and By His Defense
Teams Failure to Make a Timely and/or
Adequate Motion to Test the Exhibit 30
Residue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
IV. APPELLANTS CONSTITUTIONAL RIGHT TO
DUE PROCESS AND PRESENT A DEFENSE
WERE VIOLATED BY THE TRIAL COURTS
EXCLUSION OF CRITICAL DEFENSE
EVIDENCE REGARDING JACKSONS
MEDICAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
vii
TABLE OF CONTENTS
Page
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

C. General Rules Regarding the
Admissibility of Evidence . . . . . . . . . . . . . . . . . . . . 141
By Excluding the Testimony of Klein,
Brunn and Pfeiffer, Because It Did Not
Give Rise to a Third Party Culpability
Issue, It Was Relevant to Disputed
Issues, and its Probative Value
Substantially Outweighed Any Potential
Prejudicial Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
E. The Erroneous Exclusion of the
Testimony of Klein, Brunn and Pfeiffer
Violated Appellants Federal and State
Constitutional Right to Present a
Defense, and to Due Process and a Fair
Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
F. The Error Was Prejudicial and Requires
Reversal of Appellants Conviction . . . . . . . . . . . . . 150
V. APPELLANTS CONSTITUTIONAL RIGHT TO
EXCLUSION OF CRITICAL DEFENSE
EVIDENCE REGARDING JACKSONS
FINANCIAL CONDITION . . . . . . . . . . . . . . . . . . . . . . . 155
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
B. Relevant Pleadings & Proceedings . . . . . . . . . . . . . . 155
viii
TABLE OF CONTENTS
Page
By Excluding Evidence Regarding
Jacksons Financial Condition Because It
Was Relevant to Disputed Issues in the
Case, The Court Could Have Narrowed
the Scope of Permissible Evidence, and
its Probative Value Was Not
Substantially Outweighed By Any
Potential Prejudicial Impact . . . . . . . . . . . . . . . . . . . 159
E. The Erroneous Exclusion of All
Evidence of Jacksons Financial
Condition Violated Appellants Federal
and State Constitutional Right to Present
a Defense, and to Due Process and a Fair
Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
VI. APPELLANTS CONSTITUTIONAL RIGHT TO
DENIAL OF THE DEFENSE MOTION TO
INTRODUCE EVIDENCE OF THE THIS IS IT
TOUR CONTRACT BETWEEN AEG LIVE AND
JACKSON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
By Excluding Evidence of the Contract
Between AEG and Jackson . . . . . . . . . . . . . . . . . . . . 173
ix
TABLE OF CONTENTS
Page
E. The Erroneous Exclusion of Evidence of
the Contract Between AEG and Jackson
Violated Appellants Federal and State
Constitutional Right to Present a
Defense, and to Due Process and a Fair
Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
VII. APPELLANTS CONSTITUTIONAL RIGHTS TO
DUE PROCESS, A FAIR TRIAL, AND A FAIR
AND IMPARTIAL JURY WERE DENIED AS A
RESULT OF THE TRIAL COURTS DENIAL OF
THE DEFENSE MOTION TO SEQUESTER THE
JURY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
B. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
1. A Trial Court Has the
Statutory Authority to Order
Sequestration of a Jury . . . . . . . . . . . . . . . . . . . 179
2. A Defendant in a Criminal
P r o c e e d i n g Ha s a
Constitutional Right to Due
Process and a Fair Trial by an
Impartial Jury . . . . . . . . . . . . . . . . . . . . . . . . . . 180
C. Relevant Procedural History . . . . . . . . . . . . . . . . . . . 181
D. Media Coverage of the Trial . . . . . . . . . . . . . . . . . . . 188
E. The Jury Was Repeatedly Instructed Not
to Discuss the Case With Anyone and to
Avoid Contact With Internet and Media
Coverage of the Case, But Jurors Were
Allowed Access to Cell Phones and the
Internet Outside the Courtroom . . . . . . . . . . . . . . . . 190
x
TABLE OF CONTENTS
Page
F. The Trial Court Abused Its Discretion
By Denying the Defense Motion to
Sequester the Jury Because the
Unprecedented Fame of the Alleged
Vi ct i m Combi ned Wi t h t he
Pervasiveness of Modern Media
Rendered It Impossible for Appellant to
Receive a Fair Trial With a
Nonsequestered Jury in a Case That Was
Televised and Streamed Live Around
the World . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
G. The Courts Error In Denying the
Defense Motion to Sequester Is
Reversible Per Se, Because It Violated
Appellants Federal Constitutional Right
to a Trial By an Impartial Jury . . . . . . . . . . . . . . . . . 195
VIII. APPELLANTS CONSTITUTIONAL RIGHTS TO
DUE PROCESS, A FAIR TRIAL, AND A FAIR
AND IMPARTIAL JURY WERE VIOLATED BY
THE TRIAL COURTS REFUSAL TO EXCLUDE
TELEVISION CAMERAS FROM THE
COURTROOM AND BY ITS SUBSEQUENT
FAILURE TO TAKE STEPS TO ENSURE THAT
APPELLANT WOULD RECEIVE A FAIR
TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
B. A Defendant in a Criminal Proceeding
Has a Constitutional Right to Due
Process and a Fair Trial by an Impartial
Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
C. Relevant Procedural History . . . . . . . . . . . . . . . . . . . 196
D. Media Coverage of the Trial . . . . . . . . . . . . . . . . . . . 198
xi
TABLE OF CONTENTS
Page
E. Publicity of a Trial Can Result in Denial
of a Criminal Defendants Federal
Constitutional Right to Due Process and
a Fair Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
F. The Trial Court Committed Reversible
Error By Denying the Defense Motion to
Exclude Television Cameras From the
Courtroom and By Thereafter Failing to
Take Steps to Guarantee That Appellant
Would Receive a Fair Trial . . . . . . . . . . . . . . . . . . . . 201
G. The Courts Error In Denying the
Defense Motion to Exclude Television
Cameras From the Courtroom Is
Reversible Per Se Because It Violated
Appellants Federal Constitutional Right
to Due Process and a Fair Trial . . . . . . . . . . . . . . . . . 205
IX. THE TRIAL COURT ABUSED ITS DISCRETION
BY IMPOSING AN AGGRAVATED SENTENCE
BECAUSE IT IS NOT SUPPORTED BY A
CONSIDERATION OF ALL RELEVANT
SENTENCING FACTORS, THE JUDGE
DISPLAYED A BIAS AGAINST APPELLANT,
AND THE SENTENCE DOES NOT BEST SERVE
THE INTERESTS OF JUSTICE . . . . . . . . . . . . . . . . . . . 207
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
B. Applicable Sentencing Law . . . . . . . . . . . . . . . . . . . 207
C. The Probation Officers Report . . . . . . . . . . . . . . . . 209
D. The Pr osecut i on Sent enci ng
Memorandum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
E. The Defense Sentencing Memorandum . . . . . . . . . . 212
xii
TABLE OF CONTENTS
Page
F. The Probation and Sentencing Hearing . . . . . . . . . . 215
G. The Trial Court Abused Its Discretion by
Imposing an Upper Term Sentence . . . . . . . . . . . . . 219
X. APPELLANTS CONVICTION MUST BE
REVERSED BASED ON THE CUMULATIVE
ERRORS OF THE TRIAL COURT WHICH
UNDERMINED THE FUNDAMENTAL
FAIRNESS OF APPELLANTS TRIAL IN
VIOLATION OF HIS FIFTH, SIXTH AND
F O U R T E E N T H A M E N D M E N T
CONSTITUTIONAL RIGHTS . . . . . . . . . . . . . . . . . . . . . 229
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
CERTIFICATE OF APPELLATE COUNSEL PURSUANT
TO CALIFORNIA RULES OF COURT, RULE 8.360 (b) . . . . . . . . . 232
xiii
TABLE OF AUTHORITIES
Cases Pages
Ake v. Oklahoma (1985) 470 U.S. 68 . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Arizona v. Fulminante (1991) 499 U.S. 279 . . . . . . . . . . . . . . . . . . 195, 206
Brady v. Maryland (1963) 373 U.S. 83 . . . . . . . . . . . . . . . . . . . . . . . . 113
California v. Ramos (1983) 463 U.S. 992 . . . . . . . . . . . . . . . . . . . . . . . 229
Chambers v. Mississippi (1973) 410 U.S. 284 . . . 113, 113, 150, 164, 176
Chapman v. California (1967) 386 U.S. 18 . . . . . . . . . 115, 151, 164, 176
City of Los Angeles v. Superior Ct. (2002) 29 Cal.4th 1 . . . . . . . . . . . . 114
College Hospital, Inc. v. Superior Ct. (1994) 8 Cal.4th 704 . . . . 153, 165
Crane v. Kentucky (1986) 476 U.S. 683 . . . . . . . . . . . . . . . . . . . . 113, 150
Cuyler v. Sullivan (1980) 446 U.S. 335 . . . . . . . . . . . . . . . . . . . . . . . . 118
Davis v. Alaska (1974) 415 U.S. 308 . . . . . . . . . . . . . . . . . . . . . . 114, 150
Derden v. McNeel (5th Cir. 1992) 978 F.2d 1453 . . . . . . . . . . . . . . . . 230
Donnelly v. DeChristoforo (1974) 416 U.S. 637 . . . . . . . . . . . . . . . . . 229
Duncan v. Louisiana (1968) 391 U.S. 145 . . . . . . . . . . . . . . . . . . . . . 180
Estes v. Texas (1965) 381 U.S. 532 . . . . . . . . . . . . . . . . . . . . . . . . 199, 203
Farrow v. United States (9th Cir. 1988) 580 F.2d 1339 . . . . . . . . . . . . 228
Holmes v. South Carolina (2009) 547 U.S. 319 . . . . . . . . . . . . . . . . . . 164
Imbler v. Pachtman (1976) 424 U.S. 409 . . . . . . . . . . . . . . . . . . . . . . . 114
In re Cordero (1988) 46 Cal.3d 161 . . . . . . . . . . . . . . . . . . . . . . . 119, 120
In re Marquez (1992) 1 Cal.4th 584 . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
In re Miranda (2008) 43 Cal.4th 541 . . . . . . . . . . . . . . . . . . . . . . 113, 114
In re Murchison (1955) 349 U.S. 133 . . . . . . . . . . . . . . . . . . . . . . . . . . 181
xiv
Cases Pages
In re Saunders (1970) 2 Cal.3d 1033 . . . . . . . . . . . . . . . . . . . . . . . . . . 119
In re Steele (2004) 32 Cal.4th 682 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
In re Wilson (1992) 3 Cal.4th 945 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
In re Winship (1970) 397 U.S. 358 . . . . . . . . . . . . . . . . . . . . . . . . . 65, 101
Jackson v. Virginia (1979) 443 U.S. 307 . . . . . . . . . . . . . . . . . . . . 65, 101
Johnson v. California (2005) 545 U.S. 162 . . . . . . . . . . . . . . . . . . . . . 180
Johnson v. Zerbst (1938) 304 U.S. 458 . . . . . . . . . . . . . . . . . . . . . . . . . 119
Lincoln v. Sunn (9th Cir. 1987) 807 F.2d 805 . . . . . . . . . . . . . . . . . . . . 230
Murphy v. Florida (1975) 421 U.S. 794 . . . . . . . . . . . . . . . . . . . . . . . . 205
Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539 . . . . . . . . . . . . . . 181
Patterson v. Colorado (1907) 205 U.S. 454 . . . . . . . . . . . . . . . . . . . . . 200
People v. Ayers (1975) 51 Cal.App.3d 370 . . . . . . . . . . . . . . . . . . . . . . 180
People v. Benavides (2005) 35 Cal.4th 69 . . . . . . . . . . . . . . . . . . . . . . 133
People v. Black (2007) 41 Cal.4th 799 . . . . . . . . . . . . . . . . . . . . . . . . . 208
People v. Bradford (1997) 15 Cal.4th 1229 . . . . . . . . . . . . . . . . . . . . . 143
People v. Brady (2005) 129 Cal.App.4th 1314 . . . . . . . . . . . . . . . . . . . . 66
People v. Bunyard (1988) 45 Cal.3d 1189 . . . . . . . . . . . . . . . . . . . . . . 180
People v. Butler (2010) 187 Cal.App.4th 998 . . . . . . . . . . . . . . . . . . . . . 66
People v. Catlin (2001) 26 Cal.4th 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
People v. Ceja (1993) 4 Cal.4th 1134 . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
People v. Cooley (1962) 211 Cal.App.2d 173 . . . . . . . . . . . 147, 159, 174
People v. Corona (1978) 80 Cal.App.3d 684 . . . . . . . . . . . . . . . . . . . . . 119
xv
Cases Pages
People v. Coyer (1983) 142 Cal.App.3d 839 . . . . . . . . . . . . . . . . . . . . 116
People v. Crew (2003) 31 Cal.4th 822 . . . . . . . . . . . . . . . . . . . . . . . . . . 67
People v. Cudjo (1993) 6 Cal.4th 585 . . . . . . . . . . . . . . . . . . . . . . . . . . 142
People v. DeLarco (1983) 142 Cal.App.3d 294 . . . . . . . . . . . . . . . . . . 142
People v. Delson (1984) 161 Cal.App.3d 56 . . . . . . . . . . . . . . . . . . . . 219
People v. Edelbacher (1989) 47 Cal.3d 983 . . . . . . . . . . . . . . . . . . . . . 142
People v. Edwards (1991) 54 Cal.3d 787 . . . . . . . . . . . . . . . . . . . . . . . 142
People v. Evers (1992) 10 Cal.App.4th 588 . . . . . . . . . . . . . . . . . . . . . . 66
People v. Famalaro (2012) 52 Cal.4th 1 . . . . . . . . . . . . . . . . . . . . . . . . 205
People v. Gallego (1990) 52 Cal.3d 115 . . . . . . . . . . . . . . . . . . . . . . . . 180
People v. Garceau (1993) 6 Cal.4th 140 . . . . . . . . . . . . . . . . . . . . . . . . 141
People v. Hall (1986) 41 Cal.3d 826 . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
People v. Hamilton (2009) 45 Cal.4th 863 . . . . . . . . . . . . . . . . . . . . . . 142
People v. Headlee (1941) 18 Cal.2d 266 . . . . . . . . . . . . . . . . . . . . . . . . 65
People v. Holt (1997) 15 Cal.4th 619 . . . . . . . . . . . . . . . . . . . . . . . . . . 119
People v. Jennings (2010) 50 Cal.4th 616 . . . . . . . . . . . . . . . . . . . . . . . 66
People v. Jones (2010) 186 Cal.App.4th 216 . . . . . . . . . . . . . . . . . . . . 120
People v. Jones (1994) 24 Cal.App.4th 1780 . . . . . . . . . . . . . . . . . . . . 132
People v. Kelly (1967) 66 Cal.2d 232 . . . . . . . . . . . . . . . . . . . . . . . . . . 141
People v. Lanphear (1980) 26 Cal.3d 814 . . . . . . . . . . . . . . . . . . . . . . 119
People v. Manson (1977) 71 Cal.App.3d 1 . . . . . . . . . . . . . . . . . . . . . . 180
People v. Marshall (1997) 15 Cal.4th 1 . . . . . . . . . . . . . . . . . . . . . . . . . 65
xvi
Cases Pages
People v. Maury (2003) 30 Cal.4th 342 . . . . . . . . . . . . . . . . . . . . . . . . . 65
People v. McCary (1985) 166 Cal.App.3d 1 . . . . . . . . . . . . . . . . . . . . . 119
People v. McDonald (1984) 37 Cal.3d 351 . . . . . . . . . . . . . . . . . . 149, 163
People v. Mendoza (2000) 23 Cal.4th 896 . . . . . . . . . . . . . . . . . . . . . . 149
People v. Mendoza Tello (1997) 15 Cal.4th 264 . . . . . . . . . . . . . . . . . . 132
People v. Murphy (1963) 59 Cal.2d 818 . . . . . . . . . . . . . . . . . . . . . . . . 149
People v. Nation (1980) 26 Cal.3d 169 . . . . . . . . . . . . . . . . . . . . . . . . . 118
People v. Osband (1996) 13 Cal.4th 622 . . . . . . . . . . . . . . . . . . . . . . . 208
People v. Pope (1979) 23 Cal.3d 412 . . . . . . . . . . . . . . . . . . . . . . . . . . 118
People v. Raley (1992) 2 Cal.4th 870 . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
People v. Ramos (1982) 30 Cal.3d 553 . . . . . . . . . . . . . . . . . . . . . . . . . 229
People v. Rodriguez (1960) 186 Cal.App.2d 433 . . . . . . . . . . . . . . . . . . 66
People v. Rucker (1980) 26 Cal.3d 368 . . . . . . . . . . . . . . . . . . . . . . . . 133
People v. Sanchez (2001) 26 Cal.4th 834 . . . . . . . . . . . . . . . . . . . . . . . . 66
People v. Sandoval (2007) 41 Cal.4th 825 . . . . . . . . . . . . . . . . . . . . . . 209
People v. Soojian (2010) 190 Cal.App.4th 491 . . . . . . . . . . . . . . . . . . 153
People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968 . . . . . . . . . 209
People v. Vasquez (2006) 39 Cal.4th 47 . . . . . . . . . . . . . . . . . . . . . . . . 195
People v. Vindiola (1979) 96 Cal.App.3d 370 . . . . . . . . . . . . . . . . . . . 229
People v. Warner (1978) 20 Cal.3d 678 . . . . . . . . . . . . . . . . . . . . . . . . 220
People v. Watson (1956) 46 Cal.2d 818 . . . . . . . . . . . . . . . . . . . . 153, 165
People v. Wheeler (1978) 22 Cal.3d 258 . . . . . . . . . . . . . . . . . . . . . . . 180
xvii
Cases Pages
People v. Williams (1971) 22 Cal.App.3d 34 . . . . . . . . . . . . . . . . . . . . 229
People v. Williamson (1984) 161 Cal.App.3d 336 . . . . . . . . . . . . . . . . . 65
People v. Woodard (1979) 23 Cal.3d 329 . . . . . . . . . . . . . . . . . . . . . . . 133
People v. Wright (1985) 39 Cal.3d 576 . . . . . . . . . . . . . . . . . . . . . . . . . 149
Powell v. Alabama (1932) 287 U.S. 45 . . . . . . . . . . . . . . . . . . . . . . . . . 118
Rideau v. Louisiana (1963) 373 U.S. 723 . . . . . . . . . . . . . . . . . . . . . . . 205
Sheppard v. Maxwell (1966) 384 U.S. 333. . . . . . 180, 181, 199, 201, 203
Strickland v. Washington (1984) 466 U.S. 668 . . . 118, 119, 120, 133, 153
Taylor v. Kennedy (1978) 436 U.S. 478 . . . . . . . . . . . . . . . . . . . . . . . . 230
Taylor v. Illinois (1988) 484 U.S. 400 . . . . . . . . . . . . . . . . . . . . . . . . . 150
Traxler v. Thompson (1970) 4 Cal.App.3d 278 . . . . . . . . . . . . . . . . . . 141
United States v. Bagley (1985) 473 U.S. 667 . . . . . . . . . . . . . . . . . . . . 113
United States. v. Safirstein (9th Cir.1987) 827 F.2d 1380 . . . . . . . . . . 228
Washington v. Texas (1967) 388 U.S. 14 . . . . . . . . . . . . . . . 115, 150, 164
Jury Instructions
CALCRIM No. 201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
CALCRIM No. 581 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
CALCRIM No. 582 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Const. Provisions Pages
Cal. Const., art. I, 15 . . . . . . . . . . . . . . . . . . . . . . . . . . 112-113, 118, 150
Cal. Const., art. I, 16 . . . . . . . . . . . . . . . . . . . . . . . . . . 112-113, 150, 180
xviii
Const. Provisions Pages
Cal. Const., art. I, 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112-113, 150
U. S. Const., 1st Amend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199, 201
U. S. Const., 5th Amend. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 113, 230
U. S. Const., 6th Amend . . . . . . . . . . . . . . . . 112, 118, 150, 164, 180 199
U. S. Const., 14th Amend. 65, 101, 112, 113, 118, 150, 164, 180, 199, 230
Misc.
Cal. Code of Judicial Ethics, Canon 3B (7) . . . . . . . . . . . . . . . . . . . . . 225
Rules of Court
Cal. Rules of Court, rule 4.410 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
Statutes
Evid. Code 210 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Evid. Code 351 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Evid. Code 352 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135, 141
Pen. Code 192 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Pen. Code 192, subd. (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 66
Pen. Code 193, subd. (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
Pen. Code 1121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
Pen. Code 1170, subd. (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
Pen. Code 1170, subd. (h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 208
xix
Statutes Pages
Pen. Code 1237 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Pen. Code 1260 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
Websites
http://m.ibtimes.com/michael-jackson-dr-conrad-murray-trial-full-
coverage-nancy-grace-dr-drew-perezhilton-com-tmz-com-220830.
html . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
http://tv.yahoo.com/news/media-covering-conrad-murray-trial-172
2001830. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
http://www.callawyer.com/clstory.cfm?pubdt=201203&eid=920905
&evid=1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
http://www.hollywoodreporter.com/news/michael-jackson-trial-app
-murray-241671 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
1
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SEVEN

THE PEOPLE OF THE STATE OF CALIFORNIA, No. B237677
Plaintiff and Respondent,
v.
CONRAD ROBERT MURRAY,
Defendant and Appellant.

APPELLANTS OPENING BRIEF
STATEMENT OF APPEALABILITY
This appeal is from a final judgment of conviction that disposes of all
issues between the parties and is authorized by Penal Code section 1237.
2
STATEMENT OF THE CASE
In an information filed on January 25, 2011, appellant Conrad Robert
Murray was charged with one felony count of involuntary manslaughter (Pen.
Code 192, subd. (b)), for the death of Michael Jackson. (7CT-1294-1295.)
Appellant pled not guilty. (7CT-1297.)
After a lengthy voir dire in which potential jurors completed a 30-
page questionnaire (7CT-1498-1527), the jury was empaneled on September
23, 2011. (10CT-2363.) During trial, 49 witnesses testified. (See 1RT
Master Index.) On November 7, 2011, the jury found appellant guilty as
charged. (11CT-2640.)
On November 29, 2011, appellant was sentenced to the upper term of
four years, to be served in the Los Angeles County Jail pursuant to Penal Code
section 1170, subdivision (h). (SCT-187; 30RT-11748.) Appellant filed a
timely notice of appeal. (12CT-2820.)
3
STATEMENT OF FACTS
Prosecution Case
Michael Jacksons Residence & Staff
In late 2008, Michael Jackson and his children moved to 100 North
Carolwood in Los Angeles (Carolwood), a gated residence always
monitored by at least two security guards. Michael Amir Williams, Jacksons
personal assistant, was the liaison between Jackson and his staff. He worked
primarily out of the security trailer. (9RT-2843-2844, 2851, 2769-2773.)
Jacksons personal security team included Faheem Muhammad (Chief of
Security), Alberto Alvarez (Director of Logistics), and three others.
(9RT-2884; 10RT-3005, 3009.)

Jacksons This Is It Tour
Paul Gongaware, the co-CEO of AEG Live Concerts West (AEG
Live), was the producer and promoter of Jacksons This Is It tour. The
tour contracted to present 31 shows at the O2 Arena in London, but due to
tremendous interest, the number increased to 50. (8RT-2561-2565.) A
schedule was prepared for rehearsals in Los Angeles and London, and for 50
shows from July through September 2009, and January through March 2010.
(8RT-2567-2572; Exh. 3.)
In mid-April 2009, Kenneth Ortega began working as director and co-
1
All dates referred to herein occurred in 2009 unless otherwise stated.
4
creator with Jackson.
1
Ortega, Jackson, and a choreographer met three to five
days a week at Burbank Center Stages for creative and conceptual discussions.
Jacksons main motivation for the tour was to share his love of performing
with his children and fans, and present an environmental message.
(8RT-2501-2503.)
Appellant Was Hired As Jacksons Personal Physician
Sometime in May, Jackson told Gongaware he wanted to hire
appellant as his personal physician for the tour. Gongaware called appellant,
but was unable to make a deal. Subsequently Gongaware offered appellant
$150,000 a month, and after learning that figure came from Jackson, appellant
accepted. (8RT-2575-2580; 9RT-2716-2719.)
In June, at the request of AEG Live, attorney Kathy Jorrie drafted a
contract for services between Jackson and appellant. On June 15th, she e-
mailed a draft to an AEG Live accountant, who forwarded it to appellant.
Jorrie and appellant thereafter communicated by phone and e-mail, and several
revisions were made. (9RT-2732-2735, 2741-2745, 2748-2750; 24RT-8247.)
The final contract was signed by appellant and returned to Jorrie on June 24th.
(9RT- 2738-2739, 2752; Exh. 4.) It was to take effect as soon as it was signed
by AEG Live, appellant, appellants company G.C.A., and Jackson. Appellant
5
was to be paid retroactively beginning May 1st, and ending March 6, 2010.
(9RT-2735-2736.) Only appellant signed the contract, and he was never paid
for his services. (9RT-2756.)
Tour Rehearsals & Concern About Jackson
In early June, rehearsals moved to the Forum. Around June 18th, they
moved to Staples Center (Staples). Rehearsals took place from late
afternoon into the evening, with Jacksons involvement typically five to seven
hours a day. (8RT-2505-2509, 2553.)
Jackson missed about a week of rehearsals prior to June 18th. (8RT-
2512-2513, 2557-2558.) Ortega tried to ascertain the problem, and he spoke
to Gongaware, and Brandon Phillips - the President/CEO of AEG Live.
(8RT-2541-2542; 24RT-8401-8403.) On June 19th, Jacksons behavior
troubled Ortega, and he wondered if Jackson was on drugs. Jackson was
slightly incoherent, chilled, somewhat lost, and not well enough to rehearse.
He watched rehearsal for about an hour, then left early. (8RT- 2513-2515,
2550-2551.) Ortega expressed his concerns to Phillips in an e-mail sent on
June 20th at 2:04 a.m. It stated in part, the artist may be unable to rise to the
occasion due to real emotional stuff, and he should be psychologically
evaluated. Ortega noted Jackson was scared the tour might be canceled and
had practically begged for his confidence. (8RT-2516-2519; Exh. 1.)
On June 20th, a meeting held at Jacksons residence was attended by
2
Jacksons rehearsals were videotaped, and footage was edited into
the This Is It movie. (8RT-2555-2556.) The prosecution played video of
Jackson performing The Way You Make Me Feel on June 23rd, and Earth
Song on June 24th. (8RT-2532-2536; Exh. 2.)
6
Ortega, Phillips, Frank Dileo (Jacksons manager), appellant, and Jackson.
Appellant had been creating daily schedules to ensure Jackson would not miss
rehearsals. (8RT-2519-2522.) He was upset Ortega had not allowed Jackson
to rehearse the night before, and said to leave Jacksons health to him.
Jackson and appellant assured Ortega that Jackson was physically and
emotionally capable of handling the show. Ortega expressed concern for
Jacksons well being. Jackson and appellant were receptive to everyones
concerns. (8RT-2534-2535, 2545-2546, 2582-2583; 9RT-2714.)
At the next two scheduled rehearsals on June 23rd and 24th, Jackson
was full of energy and enthusiasm.
2
(8RT-2526, 2555; 9RT-2707, 2890.) On
June 24th, around 7:00 p.m., Muhammad drove Williams and Jackson to
Staples. Jackson was in good spirits, and anxious to arrive. Alvarez had gone
earlier to prepare for Jacksons arrival. (9RT-2789, 2888; 10RT-3012-3013.)
After rehearsal Jackson was happy, he told Ortega they were accomplishing
the dream, and discussed his desire to take the tour to other cities after
London, and then make movies and films. (8RT-2537.)
Around 1:00 a.m. Jackson and his entourage returned to Carolwood.
Appellants BMW was in the driveway. Muhammad, Williams and Alvarez
7
subsequently went home for the night. (9RT-2790-2793, 2892; 10RT-3016-
3019; 17RT-5169-5172.)
The Events of June 25th
On June 25th, between 12:05 and 12:10 p.m., appellant partially
descended the kitchen stairs and shouted, Get help, get security, get Prince.
(10RT-3202, 3226.) Jacksons chef, Kai Chase, ran to the adjacent den to get
Prince. Chase and Prince ran back into the kitchen, and Prince approached
appellant. (10RT-3179-3181, 3198, 3202-3205.) Security personnel entered
the house about five minutes later. (10RT-3231.)
At 12:13 p.m. Williams received a voicemail from appellant, asking
him to call immediately. Williams called appellant at 12:15 p.m. Appellant
said Jackson had a bad reaction, to get someone up here immediately, and
then he hung up. (9RT-2795, 2800, 2803; Exhs. 13-15.) Williams called
Muhammad, who was running an errand, and told him to immediately return
and check on Jackson. (9RT-2893-2897; Exh. 18.) There were several
incomplete calls between Williams and Alvarez at 12:17 and 12:18 p.m. At
12:18 Williams spoke with Alvarez, and directed him to enter the house and
assess the situation. (9RT-2804-2806; 10RT-3021; Exh. 26.)
When Alvarez reached the front door, he saw appellant leaning over
the second floor railing. (9RT-2807; 10RT-3024, 3026.) He went upstairs
and appellant stated, Come quick. Alvarez grasped the seriousness of the
8
situation, and he hung up on Williams. (10RT-3029, 3032-3033.) He entered
Jacksons bedroom and observed appellant giving Jackson chest compressions
with his left hand. Jackson was on his bed, his eyes were slightly open, and
his mouth was open. Appellant said they needed to get Jackson to a hospital.
Jacksons children entered the room, and Alvarez ushered them out to the
landing. (10RT-3034-3038.)
Alvarez returned to the bedroom, and appellant said Jackson had a
bad reaction. Oxygen tubing was connected to Jacksons nose, and there was
an IV-stand in the room. Alvarez did not observe a heart monitor or similar
equipment. At some point he saw an ambu bag. (10RT-3038-3042.)
Appellant grabbed a handful of vials from the nightstand, and told
Alvarez to put them into a bag. Alvarez took a plastic bag, held it open, and
appellant placed vials in the bag. Appellant pointed to a brown bag, and
Alvarez followed his instructions to place the plastic bag inside. A saline bag
was hanging on the right side of the IV-stand (Exh. 29), and Alvarez followed
appellants directions to grab it and place it in a blue bag. Alvarez noticed a
bottle (Exh. 30) inside the saline bag, and a milky white substance on the
bottom of the bag. The metal rimmed stopper of the bottle was facing the
bottom of the bag towards the port, in a slightly diagonal position. Appellant
did not ask Alvarez to remove the other saline bag on the IV-stand.
(10RT-3042-3045, 3051-3054, 3064-3067, 3097-3098.)
9
At appellants direction, Alvarez called 911 at 12:20 p.m.
(10CT-2396-2400; 10RT-3070-3075; Exhs. 26, 31, 32.) Muhammad returned
to Carolwood around 12:23 p.m., and went to Jacksons bedroom.
(9RT-2896-2897.) Jacksons eyes were open, his mouth was slightly agape,
and he appeared to be dead. Appellant asked Alvarez and Williams if they
knew CPR. Alvarez began performing two-handed chest compressions.
(9RT- 2905.) Appellant performed mouth-to-mouth resuscitation. Alvarez
had not seen any signs of life from Jackson. (10RT-3081-3084.)
Paramedic firefighters Richard Senneff and Martin Blount responded
to Carolwood in an ambulance, along with Engine 71. The rescue team drove
approximately a mile and a half, arrived at 12:26 p.m., and were escorted into
Jacksons bedroom. (9RT-2907; 11RT-3375-3376, 3386, 3486-3488.)
Appellant was standing bedside, leaning over Jackson, and with assistance,
moved Jackson to the floor. He identified himself as Jacksons doctor, and
appeared somewhat frantic. (11RT-3389, 3489-3490.) Paramedics noticed
a saline IV-bag hanging on an IV-stand with attached tubing in Jacksons
right calf, an oxygen tank, a long tube with an attached nasal cannula on
Jacksons face, and an ambu bag. They did not see any other medical
equipment. (11RT-3423, 3430, 3435, 3441-3442, 3497-3498.) Three open
vials of lidocaine were on the floor. (11RT-3506.)
Senneff asked appellant questions, trying to ascertain the problem.
10
Appellant said the incident occurred right when he called, or that Jackson had
been down for about a minute. Based thereon, Senneff felt there was a good
chance of saving Jackson. (11RT-3391-3393, 3513.)
Senneff continued questioning appellant as others began to take
action. Jackson was moved to an area on the carpet with more room to work.
CPR, ventilation, and intubation procedures were begun. An EKG indicated
Jackson was asystole (no heartbeat). Paramedics administered epinephrine
and atropine intravenously, but Jacksons condition did not change.
(11RT-3394-3399, 3401-3403, 3491-3496, 3499, 3502.)
Senneff asked whether Jackson had taken any medication. Appellant
said, No, then indicated he gave Jackson lorazepam for sleep. He said
Jackson rehearsed 16 hours the previous night, and he was treating Jackson
for dehydration and exhaustion with normal saline. Appellant never
mentioned giving Jackson propofol or lidocaine. (11RT-3400-3401, 3425-
3436, 3442, 3499-3500, 3506, 3526.)
The paramedics made multiple observations that did not comport with
Jackson just having had the episode. When Senneff first moved Jackson, his
skin was very cool to the touch, his eyes were dry, and his pupils were dilated.
He was asystole, and the capnography reading was low. (11RT-3406-3407,
3409, 3514.) Blount believed Jackson was dead. (11RT-3496.) A second
round of drugs was administered, this time through the left jugular vein in
11
Jacksons neck, because the IV had come out of his leg. (11RT-3407, 3503.)
During chest compressions, appellant indicated he felt a right femoral
pulse. Compressions were stopped, Senneff checked for a cardiac rhythm that
could create a pulse, but he determined the heart was not functioning
electronically, and what appellant felt was only the result of compressions.
Nobody could confirm a pulse. (11RT-3412-3415, 3467, 3475, 3507-3508.)
At the scene, Senneff communicated with the UCLA hospital base
station radio nurse, who communicated with base station doctors. At 12:57
p.m., UCLA indicated a time of death should be called. (10CT-2405-2407;
11RT-3405, 3408, 3417-3422, 3508; Exhs. 44-45.) Nevertheless, appellant
wanted Jackson transported to the hospital, and he assumed care during the
transport. (11RT-3422, 3468, 3529-3530.) Paramedics administered sodium
bicarbonate, but Jacksons condition remained unchanged. (11RT-3419,
3427-3428.)
When paramedics were about to take Jackson downstairs, appellant
put the lidocaine bottles into a bag. (11RT-3510-3511.) After Jackson was
downstairs, Senneff went back to Jacksons bedroom to retrieve medical
equipment. He saw appellant holding a bag, picking up items from the floor.
Appellant appeared surprised to see Senneff, but continued his activity.
Senneff went downstairs, and shortly thereafter appellant went to the
ambulance. (11RT-3429-3432, 3436, 3469, 3475-3479.)
12
Appellant rode with paramedics in the ambulance, and called his
girlfriend Nicole to inform her of the situation. During the transport, Jackson
showed no signs of life. He was given additional epinephrine and atropine,
but his condition did not change. (11RT-3432-3434, 3511-3512; 13RT-3989-
3991.) Alvarez followed the ambulance, and Williams followed in another
vehicle with Jacksons children and nanny. (9RT-2811, 2909; 10RT-3084-
3085.)
Dr. Richelle Cooper was the attending emergency room physician
when Jackson was brought to Ronald Reagan/UCLA Medical Center
(UCLA). At 12:57 p.m., Cooper had authorized paramedics to pronounce
Jackson dead in the field, based on information he had no signs of life,
paramedics had attempted resuscitation, his estimated down time was at least
40 minutes, he was unresponsive, asystolic, had no pulse, was not breathing,
and his pupils were fixed and dilated. Subsequently Cooper authorized
Jacksons physician to assume care, with a requirement the paramedics had to
transport Jackson to a hospital. (11RT-3533-3534, 3538-3542; 12RT-3619.)
Cooper prepared a team to care for Jackson. The ambulance arrived
around 1:13 p.m., and Cooper took over Jacksons care. Upon arrival,
Jackson was clinically dead, his eyes were fixed and dilated, he had no
palpable pulse, and he had a dying heart. Nevertheless, attempts were made
to revive him. (11RT-3434, 3542-3543, 3545-3548, 3555-3558; 12RT-3605-
13
3611, 3620.)
Cooper asked what happened. Appellant said Jackson was working
very long hours, he thought Jackson was dehydrated, and he had administered
two-milligrams of lorazepam intravenously. He later gave Jackson another
two-milligrams of lorazepam, and witnessed Jackson arrest. Appellant said
Jackson had not been ill. He did not mention giving Jackson propofol or any
other medication. (11RT-3549-3552; 12RT-3604, 3639, 3650-3652.)
Appellant was present throughout the resuscitation. He did not
provide any medical records or documentation. Appellant said Jackson used
Flomax and Valium as routine medications. He denied Jackson had cardiac
problems, blood clots, a history of drug use, or any other significant medical
history. (11RT-3553-3555, 3639.)
At 1:38 p.m., cardiologist Thao Nguyen responded to the emergency
room and spoke to appellant. He said he gave Jackson four-milligrams of
Ativan (lorazepam) IV, but could not recall when, and said no other sedatives
had been given. Appellant said he left, and when he returned Jackson was not
breathing. He did not know what time that occurred, or the amount of time
that passed before 911 was called. Appellant never mentioned propofol, or
any narcotic other than Ativan. He asked Nguyen to not give up. One
additional procedure was done, but it was unsuccessful. (12RT-3711-3720,
3725-3730, 3748-3749.) Jacksons condition never changed, and he was
14
pronounced dead at 2:26 p.m. (12RT-3608, 3611-3612.)
Appellant spoke to Williams, and requested he be driven back to
Carolwood to retrieve some cream Jackson would not want people to know
about. Williams and Muhammad decided appellant should not be allowed in
the residence, and the residence was placed on lockdown. (9RT-2815-2816,
2819, 2911.)
At 5:20 p.m., coroner investigator Elissa Fleak responded to UCLA.
She examined Jackson, documented his physical condition through notes and
photographs, and collected four vials of blood taken during his treatment.
Fleak did not observe any signs of trauma or anything that would help
determine a cause of death. (14RT-4301-4305.)
Detective Scott Smith was at UCLA from 4:25 to about 7:00 p.m.
Muhammad and Alvarez told him they were employed by Jackson, and
provided their contact information. Alvarez said he had assisted appellant,
who advised him to call 911. (16RT-4882-4883, 4489-4890.)
A few hours after Jackson was pronounced dead, Williams, Alvarez,
and security personnel returned to Carolwood. Police were present, and
appellants car was still there. (9RT-2821, 2925; 10RT-3088-3089.)
June 25th Search of Carolwood
Around 7:10 p.m. on June 25th, Fleak went to Carolwood to perform
an investigation. (14RT-4305.) Smith arrived shortly thereafter. He and
3
Smith later became lead investigator. In August, the investigation
was deemed a homicide investigation. (17RT-5153, 5160.)
15
other LAPD members assisted in the coroners investigation.
3
(16RT-4891-
4893.) Fleak was in charge of collecting and chronicling the evidence. Her
supervisor, Ed Winter, was also present. Fleak and a LAPD photographer
took photographs. (14RT-4309; 15RT-4528-4529, 4583.) The investigation
focused on the bedroom where Jackson died. To the right of the bedroom is
a large closet area that leads to a bathroom. There is a foyer outside the
bedroom, and an additional bedroom to the left. (14RT-4306-4307; 16RT-
4862-4863, 4894; Exh. 174.)
In Jacksons bedroom, Fleak found an essentially empty 20-milliliter
propofol bottle on the floor under a bedside table. (14RT-4307-4310; Exh.
102.) An almost empty bottle of Flumazenil was recovered in the same
general area. (14RT-4311; 15RT-4546-4548; Exh. 103.) Prescription
medication collected from the nightstands included diazepam, Flomax, and
lorazepam prescribed to Jackson by appellant. (14RT-4312- 4313; Exhs. 105-
107.)
A basket on the lower shelf of the wooden nightstand contained
additional medicines: temazepam prescribed by appellant to Jackson, filled
on 12-22-08; tizanidine prescribed to Omar Arnold by Dr. Klein, filled on
6-7-09; clonazepam and trazodone prescribed to Mick Jackson by Dr.
4
Smith testified the decision to leave the house open was made by the
coroner. (17R-5149.) According to Fleak, the decision is usually made by the
handling agency, and here it was the LAPD. (15RT-4573.)
16
Metzger, filled on 4-18-09; and tubes of various prescription lotions -
hydroquinone, Benoquin, and lidocaine. (14RT-4314-4316; Exhs. 108-114.)
Fleak observed several oxygen tanks, including one on a rolling dolly
near the bed. An ambu bag was on the floor near the metal nightstand, and
underneath it was an IV-catheter with an uncovered and exposed needle (Exh.
120). A10-cc syringe without an attached needle (Exh. 118) was on the
nightstand. Various medical supplies and needles were also recovered.
(14RT-4317-4323.) A jug of urine and some pads were found on a chair.
Nearby was an IV-stand with a hanging saline bag. Tubing with an attached
syringe was draped over the IV-stand, but it was not attached to the saline bag.
Fleak did not collect the IV-apparatus that day. (14RT-4324-4325;
15RT-4575; 16RT-4869-4870.)
At 8:20 p.m., Fleak left Carolwood. (14RT-4325-4326.) Smith
remained there until 9:30 p.m., when the scene was cleared. At the request of
Jacksons family, the house was released to private security on the scene.
4
(16RT-4894.) Smith was told the house was not going to be sealed. An
entirely new private security staff was brought in that evening. After June
25th, the house was left locked with security present, but it was not locked
down. (9RT-2877; 17RT-5144-5145, 5149.)
5
The prosecution played the audio-recording of the interview.
(16RT-4909-4913; 17RT-5105; Exhs. 197, 198-11CT-2420-2546.)
17
Smith returned to Carolwood on June 26th, after receiving word
Winter had gone there and obtained some items recovered by the family. He
took custody of those items, which included some rotten marijuana found in
a closet in Jacksons bedroom. (16RT-4895-4896; 17RT-5146.)
Several items, including empty prescription bottles, were found in
Jacksons private bathroom next to his private bedroom (not the bedroom
where he died.) (14RT-4326; 15RT-4562; 16RT-4897.) Recovered items
included: temazepam prescribed to Omar Arnold by appellant, filled 12-22-
08; tizanadine prescribed to Arnold by Klein, filled 9-26-08; Balisone
ointment prescribed to Arnold by Klein, filled 5-3-09; an empty bottle of
lorazepam, prescribed to Jackson by appellant, filled 4-2-09; an empty bottle
of diazepam, filled 4-14-09; Benoquin cream; and business cards for both
appellant and Las Vegas anesthesiologist David Adams. (16RT-4898-4899;
17RT-5110-5112; Exhs. 184-188, 199-200, 202.)
Appellants Police Interview
On June 27th, at the request of appellants attorneys, Detectives
Martinez and Smith conducted an audio-recorded interview of appellant.
5
(16RT-4905-4907, 4909-4910.) Appellant had not previously told law
18
enforcement he had administered propofol to Jackson. Following the
interview, appellant was not taken into custody. (17RT-5106-5107, 5112.)
Appellant is an internist, with a specialty in cardiology, and a
subspecialty in interventional cardiology. He met Jackson in 2006, when
Jackson and his children were ill, and he thereafter treated Jackson
intermittently. In 2009, appellant accepted employment to accompany
Jackson on a concert tour in England. (11CT-2428-2431.)
For a little over two months, appellant took care of Jackson, spending
every night at Carolwood except for Sundays. (11CT-2430-2431, 2434.)
With the exception of the three days prior to Jacksons death, appellant
administered propofol to Jackson on a daily basis. He did so by giving
Jackson a small injection of propofol to help Jackson sleep, then dripped it
slowly so Jackson would continue to sleep. When hired, appellant was
unaware Jackson was using propofol daily, and he was surprised at Jacksons
pharmacological knowledge. (11CT-2462, 2482-2483.) Jackson said he
had taken propofol numerous times, used it frequently on his tours, and had
received it from multiple doctors. Jackson knew antiburn medication was
required with a propofol injection. Appellant constantly cautioned Jackson
that propofol was an artificial way to go to sleep, and tried to counsel him
against such frequent use. (11CT-2463-2465.)
On June 25th, around 12:50 p.m., appellant went to Carolwood and
6
There were two upstairs suites in the house. Nobody, including the
cleaning staff and appellant, was allowed in the suite next to the bedroom
where appellant treated Jackson. (11CT-2435, 2437-2438.)
19
waited upstairs for Jackson.
6
Around 1:00 a.m. Jackson arrived, said he was
tired, took a shower, then returned to the room. (11CT-2433-2436.) Jackson
wanted to go to sleep, but was unable to sleep naturally. Appellant typically
placed him on an IV for hydration and sleep medication. That night, he put
an IV just below Jacksons knee, and placed him on a saline IV-drip. They
talked a bit, and he gave Jackson some sleep medication. (11CT-2439-2440,
2443.)
Initially Jackson took a 10-milligram Valium pill. Subsequently
appellant turned off the saline drip, and slowly administered two-milligrams
of lorazepam (Ativan) diluted with saline, through a syringe in the IV-port.
He then turned the saline drip back on. (11CT-2440-2443, 2449.)
Jackson stayed awake and complained about it, so around 3:00 a.m.,
appellant slowly injected two-milligrams of midazolam (Versed). Jackson fell
asleep around 3:15 or 3:20 a.m., but woke up after 10 or 12 minutes. He was
unable to fall asleep again, and at 4:30, complained he had to sleep because
of rehearsals and his upcoming tour. Around 5:00 a.m. appellant administered
another two-milligrams of lorazepam. (11CT-2443, 2446-2450.)
Jackson said if he was not rested he could not perform, and he would
have to again cancel rehearsals. Appellant felt pressured. At 7:30 a.m.
20
Jackson was still awake, so appellant administered another two-milligrams of
midazolam. (11CT-2450.) It had no effect, and after 10:00 a.m., Jackson was
still awake. He complained he could not sleep and said, Please, please give
me some milk so that I can sleep, because I know that this is all that really
works for me. (11CT-2452-2453.) Jackson was referring to propofol, an IV-
sedative. (11CT-2453-2454.)
Jackson said, Just make me sleep. Doesnt matter what time I get
up. He said if he did not sleep he could not function, and rehearsal would
have to be canceled. Around 10:40 a.m. appellant gave Jackson 25-
milligrams of propofol - a small dose to help him sleep. Appellant withdrew
propofol from the bottle, and diluted it with lidocaine (a local anesthetic to
counter the burning sensation). He administered the mixture by slowly
infusing it over three to five minutes. The effect only lasts about 15 minutes.
Jackson went to sleep. (11CT-2454-2458.)
When administering propofol, appellant took all available
precautions. He placed Jackson on oxygen, and put a pulse oximeter on him.
Appellant previously administered propofol to Jackson without any problems.
The highest initial propofol dose he had given Jackson before starting him on
an IV-drip was about 50-milligrams. On June 25th, he halved the dose
because he had earlier given Jackson other sleep medications. (11CT-2458-
2461.) Jackson fell asleep rather quickly. Appellant monitored Jackson until
21
he felt comfortable leaving him. He checked Jacksons heart rate and oxygen
saturation level, then went to use the bathroom. (11CT-2481-2483.)
When appellant returned, he was stunned to see Jackson not
breathing. Jacksons heart rate was about 122, and appellant was able to get
a thready pulse in the femoral region. Jacksons body was warm, there was
no change in color, and appellant assumed everything happened very quickly.
Appellant immediately started to perform CPR, beginning with chest
compressions, then swiftly went to single-man resuscitation to ventilate
directly, mouth-to-mouth. He saw Jacksons chest rise appropriately and fall,
so he knew he was ventilating him and providing oxygen. Then appellant
switched back to CPR. (11CT-2483-2486.)
Appellant could not move Jackson off the bed by himself, so he
improvised. He put his left hand under Jacksons body, and compressed with
his hand not moving, in place. There was nobody in the house other than
appellant, Jackson, and his children, and no working telephones. Appellant
felt calling 911 would require him to neglect Jackson. He wanted to ventilate
Jackson, and do chest compressions - enough to give him an opportunity.
Appellant continued CPR singularly with his left hand, reached for his cell
phone, and called Jacksons assistant and told him to send security due to a
problem. He felt he could not ask Jacksons assistant to call 911 at that time,
because he would have to explain the situation, and he needed to focus on
22
helping Jackson while trying to get assistance. (11CT-2486-2488.)
Appellant continued chest compressions and mouth-to-mouth
resuscitation, recognizing Jackson now lacked a pulse. He administered two-
milligrams of Flumazenil IV (an antidote for benzodiazepines), and continued
chest compressions to circulate the medication. Jackson was still not
breathing. Appellant went down towards the kitchen, saw the chef, and said,
I have an emergency. Have security come immediately. Alvarez came
upstairs, and as appellant continued chest compressions and mouth-to-mouth,
he instructed Alvarez to call 911. Once the operator said help was on the way,
Alvarez and appellant moved Jackson to the floor. Appellant continued CPR
and mouth-to-mouth until the paramedics arrived. (11CT-2489-2491.)
The paramedics were unsuccessful in reviving Jackson. Appellant
asked UCLA to transfer care to him, instead of calling the time of death. They
agreed to do so. (11CT-2494.) Appellant continued CPR, epinephrine,
atropine, and bicarbonate though the IV. He rode in the ambulance with
Jackson. Appellant did not want to sign the death certificate at UCLA,
because he did not know the cause of death. He recommended an autopsy be
performed. (11CT-2496-2499.)
In March or April, Jackson called appellant from Las Vegas, said he
was having difficulty sleeping, and asked appellant to help. Jackson asked
about Diprivan (propofol), and said he knew it worked. Appellant told him
23
it was not readily obtainable, as it had to be ordered. Jackson became
frustrated, and asked appellant if he knew Dr. Adams, who had given him
propofol in Vegas several times. Appellant did not know Adams. (11CT-
2469-2471.) Subsequently appellant called Adams, who said Jackson did well
on Diprivan, and loved it. Appellant allowed Adams to use his office that
day. Adams put Jackson on a Diprivan drip, and Jackson slept for about six
hours. When he woke up, he said he felt wonderful. (11CT-2473-2474.)
Three days before Jackson died, with Jacksons reluctant agreement,
appellant began weaning Jackson off propofol to try and get him to sleep
naturally. The first night appellant used more lorazepam and midazolam, and
a lower dose of propofol at a slower drip rate. Except for some interruptions
in sleep, Jackson slept for a reasonable time. (11CT-2500-2504.) The second
night appellant gave Jackson lorazepam and midazolam, but no propofol.
Jackson seemed to respond more physiologically, and was not groggy when
he woke up. Appellant thought they were really onto something then.
(11CT-2504.)
The third night (the morning of June 25th), after giving Jackson a ten-
milligram Valium tablet, appellant administered lorazepam. (11CT-2440-
2441.) It did not work, and appellant wondered if Jackson was going through
withdrawal from that agent. Jackson kept saying he had to sleep, or his
show was going to fall apart. At daylight, after trying to get Jackson to sleep
24
all night, appellant decided to give him some propofol, so Jackson could sleep
a couple of hours and be able to work. Appellant cared about Jackson, and
had no intention of hurting him. (11CT-2505-2506.)
Appellant may have prescribed clonazepam (Restoril) for Jackson, a
sleeping pill to be used at night as needed. He had recently prescribed
diazepam (Valium) for the first time. Appellant had prescribed lorazepam
(Ativan), but since it was not working orally for Jackson, he decided to
administer it through an IV. He also prescribed Benoquin (a bleaching
cream), and Flomax. Appellant never gave Demerol to Jackson.
(11CT-2526-2529, 2535, 2545.)
Appellant was not aware of other medications Jackson was taking.
Members of Jacksons production team told him Jackson was seeing Klein
three times a week, but Jackson never disclosed that to appellant. About three
weeks before, Jackson had desperately called Kleins office, wanting to see
if Jason could squeeze him in. Appellant did not ask what Jackson
needed. He had seen medication at Jacksons bedside prescribed by Beverly
Hills doctors Klein and Metzger, so he realized Jackson was seeing other
physicians. (11CT-2523-2524, 2540.)
Jacksons production team had recently told appellant Jacksons worst
days were after going to Kleins office. He was told Jackson went there about
three times a week, and afterwards he was basically wasted and required at
25
least 24 hours to recover. Appellant was not certain why Jackson never
shared with him the fact he was seeing a dermatologist or any other doctor.
(11CT-2534-2535.)
On June 25th, appellant used two different syringes. He thereafter put
them into his bags, which he placed in a cupboard, because Jackson did not
want him leaving anything around. Smith asked where the bags were located,
and appellant said he left them at the top of the closet on the right side of the
dressing room by Jacksons bedroom. Appellant explained there were three
bags: a Costco blue bag, a small black bag, and a little blue bag with a zipper
at the top. Appellant left the bags in the house whenever he was not there.
(11CT-2541-2543.)
Jackson told appellant there were plans to develop three or four
movies with AEG after the tour, and he wanted to keep appellant around. He
wanted to open a childrens hospital, with appellant as the medical director.
(11CT-2480-2481.)
Fleak returned to Carolwood to search for additional medical
evidence in the closet area by Jacksons bedroom. A photographer and Smith
were also present. (14RT-4326-4327; 15RT-4528, 4530-4531, 4574.) Smith
located the three bags exactly where appellant said they would be. Fleak
recovered them - a black canvas bag, a larger blue Costco bag, and a light blue
7
The Nonin 9500 is labeled against continuous monitoring, and is
only intended for spot checking. (11RT-3318-3319; Exh. 36.)
26
and brown bag labeled Baby Essentials, along with a box of gloves, another
box, and two large bags containing tubes of lotions. (14RT-4328-4329;
17RT-5134.)
The black bag (Exh. 130) contained a blood pressure cuff inside a
cardboard box (Exh. 81). It also contained three bottles of lidocaine (Exh.
132) - two empty, and one a little more than half full. (14RT-4329-4332.)
The Costco bag (Exh. 133) contained a Nonin 9500 fingertip pulse
oximeter without an audible alarm (Exh. 33)
7
, a laniard, various vials, a plastic
grocery bag, and a saline bag with a cut (Exh. 29) containing a 100-milliliter
propofol vial with some liquid at the bottom (Exh. 30). (11RT-3316-3318;
14RT-4332-4337, 4342-4343.) The Costco bag also contained an essentially
empty 20-milliliter bottle of propofol (Exh. 136), an empty 10-milliliter vial
of lorazepam (Exh. 137), two empty 10-milliliter bottles of midazolam (Exh.
138), a small bloody cotton gauze or prep pad, and a plastic bag full of
medical debris that included an open empty bag labeled Excel IV
Administrative set. (14RT-4337-4339, 4342-4345.)
Fleak itemized the contents of the Baby Essentials bag. (14RT-4346;
Exh. 141.) It contained two full 100-millimeter propofol bottles, seven 20-
milliliter propofol bottles, three lidocaine bottles, three midazolam vials, four
27
bottles of Flumazenil, two 10-milliliter bottles of lorazepam, some IV-tubing,
and business cards for appellants Houston clinic. (14RT-4346-4353; Exhs.
141-147, 151, 153.)
On June 29th, Fleak also recovered the following: the saline bag and
IV-tubing she observed on June 25th (Exh. 156), IV-tubing with a spike at
one end with a roller clamp and plastic device attached to the tubing (Exh.
157), a Y-connector with attached tubing (Exh. 158), and a syringe with
attached needle (Exh. 159) that had been in the Y-port. (14RT-4353-4357;
15RT-4586.) The tip of the IV-tubing was cut off for purposes of analysis
(Exh. 160), and the spliced section at the end contained blood. All of the
items were taken into coroners evidence, and processed for testing.
(14RT-4357-4358.)
Appellants Medical Practices
Appellants Las Vegas medical office exclusively treated patients
with heart problems. (12RT-3806, 3811, 3817.) In July of 2006, appellant
opened a medical office in Houston, Texas, to serve the community of Acres
Home. He alternated weeks between Vegas and Houston. Appellant had a
high volume of patients in Houston with a minimal amount of income,
because most of his Houston patients could not afford a physician.
(13RT-3922-3925.)
8
Ms. Alvarez is hereinafter referred to as Nicole, because another
witness in the case has the same last name.
28
Appellants Girlfriend - Nicole Alvarez
Nicole Alvarez (Nicole) met appellant in 2005.
8
They later became
involved in an intimate relationship, and regularly spent time together.
(13RT-3955-3957.) On March 2nd, when they were living in Santa Monica
at 1540 6th Street, Nicole gave birth to their son. (13RT-3952-3954, 3960.)
They had been living together for awhile, and appellant provided Nicole with
financial support. (13RT-3963-3965.) In April, appellant began leaving
home around 9:00 p.m. to go treat Jackson. Nicole did not know what type
of care appellant was providing. In the beginning, appellant returned home
around 6:00 or 7:00 a.m., but the time got later and later. Appellant treated
Jackson on a nightly basis except for his days off. In June, appellant
continued the same schedule. (13RT-3966-3971.)
Appellants Drug & Medical Supply Orders in 2009
In December of 2006, appellant opened an account with Seacoast
Medical, a medical and pharmaceutical distributor in Nebraska. (14RT-4203-
4206; Exh. 79.) From April to June of 2009, appellants office ordered
numerous medical supplies from Seacoast, including: syringes, IV-catheters,
syringe needles, saline bags, infusion sets, lidocaine, an external catheter,
urine collection bags for catheters, a blood pressure cuff, an ambu bag, and
9
Although these orders were shipped to Nicoles apartment, Nicole
did not know what was contained therein. (13RT-3979-3981.)
29
airway kits. All orders were shipped to appellants Las Vegas office. (14RT-
4215-4229.)
Applied Pharmacy Services (APS) was a specialty compound
pharmacy in Las Vegas. (13RT-3998-3999.) In March of 2009, appellant
placed an order for 40 tubes of Benoquin cream. (13RT-4003-4004.) From
April 6th to June 15th, appellant placed eight orders with APS for various
items including: Benoquin cream, Hydroquinone cream, normal saline bags,
lidocaine cream, and vials of Flumazenil, lidocaine, lorazepam, midazolam,
and propofol (20 and100 milliliter vials). The first order was delivered to
appellants Las Vegas office, but after some of the propofol bottles were
removed, appellant instructed the courier to ship the rest of the order to his
other office, located at 1540 6th Street, number 404, in Santa Monica. All
subsequent orders were shipped to the Santa Monica address.
9
(13RT-4014-
4022, 4027-4029, 4032-4041, 4049; Exhs. 64-75.) During the above-
referenced time period, appellant ordered 255 propofol vials, 20 lorazepam
vials, and 60 midazolam vials. (13RT-4042-4043.)
Appellants Phone Records From June 25th
On June 25th, from 9:23 a.m. to 5:02 p.m., numerous calls were made
to and from appellants AT&T cell phone - (702) 862-0973. (12RT-3675-
30
3676, 3682; Exhs. 51, 52.) From 7:01 a.m. to 1:08 p.m., calls were also made
to and from appellants Sprint/Nextel phone - (702) 809-3747, and a text was
sent from the phone. (12RT-3702-3705; Exh. 53.)
At 11:51 a.m., appellant called Sade Anding, greeted her, and she
responded in kind. Appellant started to respond, then there was a pause.
Anding began talking to appellant, but when he did not respond, she realized
he was no longer on the phone. She pressed the phone against her ear and
heard mumbling of voices and coughing. After a few minutes Anding hung
up. She tried calling back and texting several times, but received no response.
(13RT-3942-3945, 3950.)
Appellants Cell Phones Were Recovered
On July 29th, appellants iPhone was recovered by law enforcement,
and a forensic analysis was conducted. (14RT-4249-4251; Exh. 83.) Screen
shots related to June 25th, and e-mails from June 24th and 25th were
recovered. (14RT-4251-4254, 4257-4265, 4268-4674, 4283-4293; Exhs. 83-
93, L.) A June 20th, 7:48 a.m. voicemail from Jacksons manager Dileo was
recovered. It mentioned Jackson had an episode the night before, and the
need to get him a blood test. (14RT-4274-4277; Exhs. 94, 95-10CT-2412-
2415.)
The May 10, 2009 iTalk Recording
A digital voice recording made on appellants iTalk phone application
10
The prosecution played the audio of the iTalk recording. (14RT-
4279; Exh. 96.)
31
on Sunday May 10th, at 9:05 a.m., was recovered.
10
(14RT-4277-4278, 4283,
4292.) It states:
Jackson: Elvis didnt do it. Beatles didnt do it. We have to
be phenomenal. When people leave this show, when people
leave my show, I want them to say, Ive never seen nothing
like this in my life. Go. Go. Ive never seen nothing like
this. Go. Its amazing. Hes the greatest entertainer in the
world. Im taking that money, a million children, childrens
hospital, the biggest in the world, Michael Jacksons
Childrens Hospital. Gonna have a movie theater, game
room. Children are depressed. The - in those hospitals, no
game room, no movie theater. Theyre sick because theyre
depressed. Their mind is depressing them. I want to give
them that. I care about them, them angels. God wants me to
do it. God wants me to do it. Im gonna do it, Conrad.
Appellant: I know you would.
Jackson: Dont have enough hope, no more hope. Thats the
next generation thats gonna save our planet, starting with -
well talk about it. United States, Europe, Prague, my
babies. They walk around with no mother. They drop them
off, they leave - a psychological degradation of that. They
reach out to me - please take me with you.
* * *
Jackson: Im gonna do that for them. That will be
remembered more than my performances. My performances
will be up there helping my children and always be my
dream. I love them. I love them because I didnt have a
childhood. I had no childhood. I feel their pain. I feel their
hurt. I can deal with it. Heal the World, We are the World,
Will You Be There, The Lost Children. These are the songs
Ive written because I hurt, you know, I hurt.
(13 seconds: silence.)
Appellant: You okay?
32
(8 seconds: silence.)
Jackson: I am asleep.
(Exh. 97-10CT-2419.)
Searches of Appellants Vehicle, Residences, Offices & Storage Units
Search warrants were executed in late June through late mid-August.
No propofol was recovered from appellants vehicle at Carolwood, his
medical office and storage units in Houston and Las Vegas, from his Las
Vegas home, or from Nicoles apartment in Santa Monica. No medical
records pertaining to Jackson were discovered during any search.
(17RT-5113-5116.)
The Autopsy
On June 26th, Dr. Christopher Rogers conducted an autopsy on
Jackson, but could not definitively state a cause of death. (17RT-5183-5186.)
Jackson was five feet, nine inches tall, weighed 136 pounds, and although
thin, was within the normal range on the body mass index. (17RT-5188.) He
did not have heart disease or heart abnormalities. Rogers did not observe any
trauma or natural disease that would cause him to conclude that such was the
cause of death. (17RT-5190-5191.)
After receiving the toxicology results, reviewing the transcript of
appellants police interview, and consulting with various experts, Rogers
concluded the manner of death was homicide. (17RT-5194.) He determined
33
the cause of death was acute propofol intoxication, and the contributing
condition was benzodiazepine effect. Jackson had two additional
medications in his system that were benzodiazepine sedatives - midazolam and
lorazepam - which would exacerbate the effects of propofol as to respiratory
and cardiovascular depression. (17RT-5198.)
Rogers concluded Jacksons death was a homicide based on four
factors: circumstances indicating propofol and benzodiazepines were
administered by another; propofol administration outside a hospital setting
without any appropriate medical indication; the standard of care for the
administration of propofol was not met - the absence of recommended
equipment for patient monitoring, precision dosing, and resuscitation; and, the
circumstances did not support self-administration of propofol. (17RT-5263-
5266.)
In analyzing the toxicology results, Rogers found the Valium
(diazepam) and midazolam results were consistent with appellants statement.
The propofol results were hard to analyze because propofol metabolizes so
fast, and it was not known how much was administered, how fast it was given,
and who administered it. (17RT-5211-5213, 5280.) If appellant had slowly
infused 25-milligrams of propofol, and not given any additional doses, the
femoral blood concentration would not be expected to reach anywhere near
the level found at autopsy, which was similar to a general anesthesia dose for
34
major surgery. (17RT-5280-5282.)
The stomach lorazepam concentration was about four times greater
than that in the femoral artery. Rogers opined oral lorazepam had been taken
at some point. The amount of lorazepam in the stomach had been described
as about 1/43 of a two-milligram tablet. Rogers could not tell how many
tablets were consumed. If a person took eight tablets at 10:00 a.m. on an
empty stomach, Rogers would expect them to have dissolved and been mostly
absorbed at noon, although a remnant might remain. (17RT-5238-5239.)
Toxicology Results
The coroners toxicology lab performed biological testing of
specimens taken from Jackson. (15RT-4610, 4618.) All findings are reflected
in an eight-page report. (15RT-4621; Exh. 168.) Supervising criminalist-
toxicologist Daniel Anderson prepared a summary report of the positive
toxicology findings. (15RT-4659-4660; Exh. 169.) They are summarized in
the following two charts:
35
DRUG Heart
Blood
Hospital
Blood
Femoral
Blood
Autopsy
Urine
Scene
Urine
Propofol 3.2 4.1 2.6 0.15 <0.10
Lidocaine 0.68 0.51 0.84 Present Present
Diazepam <0.10 Present ---- --- ---
Nordiazepam <0.05 --- --- --- ---
Lorazepam 0.162 --- 0.169 --- ---
Midazolam 0.0046 --- --- 0.0068 0.025
Ephedrine ND --- --- Present Present
DRUG Vitreous Liver Gastric Contents
Propofol <0.40 6.2 0.13 mg
Lidocaine --- 0.45 1.6 mg
Diazepam --- --- ---
Nordiazepam
Lorazepam
Midazolam --- --- ---
Ephedrine --- ---
Specimen (mcg/mL or mcg/g)
Specimen (mcg/mL or mcg/g)
11
Unless otherwise indicated, all drug levels discussed herein refer to
micrograms per milliliter.
36
Medical evidence was tested. Propofol and lidocaine were detected
in the liquid inside the 10-cc syringe found on the nightstand, but it was not
quantified. (15RT-4665-4666; 16RT-4821; Exh. 118.) Testing was done on
the saline bag, long tubing, Y-connector and short tubing, syringe with needle,
and the tip from the end of the tubing. (15RT-4666-4667; Exhs. 156-160.)
The syringe found sticking out of the Y-connector had 0.17 grams of fluid
(about 3.5 drops), and propofol, lidocaine, and Flumazenil were detected
therein. The same three drugs were detected in the fluid in the Y-connector
with attached short tubing. No drugs were detected in the saline bag, or in the
long section of IV-tubing with a spike connected to the Y-connector.
(15RT-4672-4673.)
The lorazepam level in the heart blood - 0.162 micrograms per
milliliter (mcg/mL) - was in the high or upper therapeutic range.
11
(15RT-
4691.) Neither Demerol (meperidine), nor its metabolite (normeperidine),
were detected in the heart blood or hospital blood. (15RT-4637-4639, 4648.)
The measurement of lorazepam in the blood does not indicate the
route of administration, and testing does not disclose how long prior to death
it was consumed. The half-life of lorazepam is approximately 9 to 16 hours,
12
Half-life is the period of time it takes to reduce the concentration
of the drug in the body by one-half. (15RT-4697.)
37
and there is no lorazepam metabolite commonly tested.
12
The consistency of
lorazepam levels in the heart and femoral blood potentially indicate
lorazepam was at equilibrium in the body, which takes time. (15RT-4695-
4699.)
A sample of the gastric contents was sent to a laboratory for testing.
It showed a lorazepam level of .634. (15RT-4702.) The concentration of
lorazepam in the stomach was about four times greater than that in the heart
and femoral blood, but it does not necessarily mean it was orally administered.
The lorazepam in the stomach was roughly between 1/40th and 1/43rd of a
two-milligram pill, and it could have come from the blood or oral
administration. (15RT-4704-4705; 16RT-4849-4850.)
The levels of midazolam were negligible. It could not be determined
when midazolam was used, whether a large amount was given, whether it
metabolized out slowly, and whether the level reflected a residual or a recent
amount. (15RT-4706.) Midazolam is only available as an injectable. (15RT-
4711.)
A prescription bottle for two-milligram lorazepam tablets prescribed
to Jackson (Exh. 107), states, Take one tablet by mouth at bedtime as needed
for insomnia. The .16 level found indicates approximately 11-milligrams.
13
Bioavailability refers to how available the drug is to ones system
depending on the route of administration. The bioavailability of an IV-
injection can be one hundred percent. Oral administration results in lower
bioavailability. (16RT-4827.)
38
It would take more milligrams by way of pill to get to the same level as an
IV.
13
(16RT-4825-4827.)
Fingerprint Evidence
Appellants left index fingerprint was found on the Exhibit 30
propofol vial. Fleaks thumb print was found on the Exhibit 118 syringe.
(15RT-4602; Exh. 167.) Identifiable fingerprints were obtained from the
saline bag with a cut (Exh. 29), another saline bag (Exh. 156), and two 20-
milliliter propofol bottles (Exh. 102, 136), but no identifications were made.
Appellant, Jackson, Fleak, Alvarez, Williams, Muhammad and others were
eliminated as the source of those fingerprints. (15RT-4602-4604; 19RT-5839;
Exhs. 167, 213.)
Expert Medical Testimony
Dr. Alon Steinberg is a board certified cardiologist. He is certified in
conscious sedation. (18RT-5413-5414, 5461.) Steinberg reviews cases for the
California Medical Board to determine if a cardiologist acted within the
standard of care. (18RT-5421.) The standard of care is generally defined
as what an ordinary doctor should do in the same situation. It encompasses
rules, actions, and conditions that direct patient care which are established by
14
Appellant was not a board certified cardiologist on June 25th.
(18RT-5418.)
39
authority, custom or general acceptance in a community, and are reflective of
a skilled diligent physician. In the California Medical Board review process,
three types of conclusions can be drawn: (1) no deviation; (2) a minor
deviation or difference; and (3) an extreme deviation (also defined as gross
negligence) - something a doctor with good skills should never do. (18RT-
5421-5422.)
Cardiologists are experts at mild or moderate sedation. Mild sedation
takes a little edge off - where the patient is still awake and talking. Moderate
or conscious sedation involves a decrease of consciousness - where the patient
is able to respond to verbal talking and touch stimuli. With deep sedation, the
patient is only responsive to painful or repeated stimulus, and there is a chance
they will stop breathing. General anesthesia is the highest sedation level -
where the patient feels no pain, their airway is usually compromised, and they
are on a respirator. (18RT-5425-5428.)
Steinberg conducted a medical board review of appellants conduct
on June 25th.
14
He chose to exclusively rely on appellants police statement.
(18RT-5428, 5522-5523.) His interpretation was appellant said he gave
Jackson 25-milligrams of propofol, then started him on a propofol drip.
(18RT-5480-5482, 5485, 5489-5490.) Steinberg conceded appellants
40
statement, I gave a dose and a drip, was ambiguous as to whether appellant
was referring to a propofol drip. (18RT-5490.)
Steinberg found six separate and distinct extreme deviations from the
standard of care, each amounting to gross negligence. (18RT-5428-5429.)
(1) Propofol was not medically indicated, as it is not
used to treat insomnia. (18RT-5429-5431, 5495-5496.)

(2) Giving propofol in a home, unmonitored, without
the proper medical equipment, medical personnel, or backup.
(18RT-5431-5440, 5530.)
(3) Inadequate preparation for complications or
emergency. (18RT-5441.)
(4) Improper care during respiratory arrest. (Steinberg
opined Jackson stopped breathing, but still had a blood
pressure.) (18RT-5441-5445, 5523-5524, 5530.)
(5) Failure to summon emergency help by not
immediately calling 911. (18RT-5447-5450.)
(6) Failure to maintain proper medical records.
(18RT-5450-5452.)
Steinberg concluded the breaches of the standard of care directly
contributed to Jacksons death. He opined that other than the failure to keep
medical records, if the deviations had not occurred, Jackson could have
survived. (18RT-5453-5454, 5535.)
Nader Kamangar is a pulmonary, critical care, and sleep medicine
physician, who received training in propofol administration. (18RT-5552-
5553, 5563.) He conducted a California Medical Board review of appellants
41
treatment of Jackson. (18RT-5560-5561, 5572.) An extreme departure in
his analysis equates to gross negligence on the part of the doctor, and is one
he would never expect to see from a reasonable, prudent doctor. (18RT-5581-
5582.)
Kamangar found the following extreme or egregious deviations in the
standard of care:
(1) The setting where propofol was provided lacked
strict monitoring capabilities. (18RT-5572-5573.)
(2) Appellant was not highly skilled in airway
management and advanced cardiac life support. (18RT-
5573-5574.)
(3) The lack of a nurse or additional bedside assistance.
(18RT-5576-5577.)
(4) The lack of equipment, including a cardiac monitor,
blood pressure cuff, pulse oximetry with an alarm, suction,
crash cart, infusion pump and airway equipment.
(18RT-5581.)
(5) The lack of medical records and charting. (18RT-
5582.)
(6) The absence of continuous and vigilant
observations of the status of the patient during sedation,
which constituted an abandonment of the patient. (18RT-
5583-5585.)
(7) The concurrent administration of benzodiazepines
and propofol, particularly in light of appellants knowledge
of Jacksons dehydration. (18RT-5585-5588.)
(8) The failure to call 911. (18RT-5589.)
(9) Appellants ineffective and improper CPR. (18RT-
42
5589-5591.)
(10) The deception of the paramedics and medical staff
by withholding key information about the propofol which
was unconscionable. (18RT-5599.)
(11) Commencing infusions of dangerous sedatives
without performing an appropriate diagnostic evaluation of
appellants insomnia. (18RT-5599-5600, 5611.)
(12) The IV administration of both midazolam and
lorazepam for the treatment of insomnia. (18RT-5618-
5619.)
(13) Using propofol for management of insomnia.
(18RT-5582, 5619-5620; 19RT-5720.)
Steven Shafer is a practicing anesthesiologist, editor-in-chief of
Anesthesia and Analgesia, and a professor of anesthesiology, bioengineering,
and therapeutic sciences. (19RT-5807-5813, 5832; 20RT-6923, 6934.)
During trial, a video on safe intravenous sedation was played. (20RT-6960-
6989; Exh. 214.) Shafer opined it demonstrated what is necessary for safe
intravenous (IV) sedation, whether performed by an anesthesiologist,
another physician or medical personnel, regardless of the dose. (20RT-6959,
6993-6995; 21RT-7379.) He found virtually none of the safeguards for
sedation were in place when propofol was administered to Jackson.
(20RT-6997.)
Shafer prepared a report dated April 15, 2011, documenting multiple
deviations from the standard of care resulting from appellants treatment of
43
Jackson. (20RT-6999.) A minor violation is not consistent with the standard
of care, and is rather common, but would not be expected to lead to a problem
unless combined with other violations. A serious violation would be expected
to cause harm to the patient, but is usually made with other violations and
mistakes. An egregious violation is something that should never happen, it
would carry a high possibility of a bad outcome, and by itself, might lead to
a catastrophic outcome. An unconscionable violation represents a
fundamental violation of the patients rights, and a medical violation as well
as a moral or ethical one. (20RT-7000-7001.)
Shafer found the following egregious violations of the standard of
care:
(1) The failure to have basic airway equipment. (20RT-
7002-7003.)
(2) The failure to have more advanced airway
equipment. (20RT-7003-7004.)
(3) The failure to have any suction apparatus . (20RT-
7007-7008.)
(4) The absence of an infusion pump. (20RT-7008-
7009.)
(5) The failure to use a pulse oximeter that had an
alarm, that was intended to be used for continuous
monitoring. (20RT- 7009-7012.)
(6) The lack of and failure to use a blood pressure cuff.
(20RT-7012-7014.)
(7) The failure to have an electrocardiogram. (20RT-
44
7014-7015.)
(8) The absence of capnography. (20RT-7015-7016.)
(9) The failure to do charting/keep medical records -
which was also an unconscionable violation. (20RT-7020-
7024, 7044.)
(10) The failure to maintain a doctor-patient
relationship. (20RT-7027-7030.)
(11) The failure to obtain informed written consent -
which is also an unconscionable violation. (20RT-7030-
7033.)
(12) The failure to continuously observe the mental
status of the patient. (20RT-7033-7035.)
(13) The failure to continuously observe and monitor
the breathing of the patient by watching the chest rise and
fall. (20RT-7037-7040, 7043.)
(14) The failure to continuously monitor the patient and
have available blood pressure, pulse oximetry, and heart
monitors - which is a form of abandonment. (20RT-7035-
7038, 7042-7043.)
(15) The failure to continuously document and keep
records in the course of sedation - which is also an
unconscionable violation. (17RT-7043-7044.)
(16) The failure to timely call 911. (20RT-7045-7046.)
(17) The failure to reveal to the paramedics and
emergency room team that he had administered propofol.
(20RT-7055-7057).
(See also 20RT-7068-7070.)
Shafer opined that each of the 17 egregious violations individually
45
were likely and should have been expected to result in injury or death. (20RT-
7071.) He also found that failing to obtain and review information from other
health care providers was a violation of the standard of care, but he did not
state the degree thereof. (20RT-7024-7025).
Shafer found the following serious violations of the standard of care:
(1) The failure to have emergency drugs to raise blood
pressure, stabilize the heart rhythm, and accelerate the heart
rhythm. (20RT-7016-7019.)
(2) The failure to pre-assess the patient prior to the
administration of IV sedatives. (20RT-7026.)
(3) Ineffective chest compressions by using a single
hand and not having the patient on a hard surface. (20RT-
7048-7050.)
(4) Giving mouth-to-mouth resuscitation - the bag
mask ventilation would be the standard of care. (20RT-
7051-7052.)
(5) The poly pharmacy - using lorazepam, midazolam,
Valium and propofol - which suggests it was done without a
real understanding of the drugs and how they interacted.
(20RT-7059-7060.)
Shafer does pharmacokinetic and pharmacodynamic (PK-PD)
modeling - computer-generated models and simulations that take a dose of a
drug, and predict what the concentration is and what it will be over the course
of time. (20RT-6933.) When a drug is injected it goes in all at once, and the
blood concentration starts quite high, and the brain concentration low. The
blood concentration then comes down, and the brain concentration goes up.
15
MAC sedation is typically for minor procedures where it is
important for the patient to be sleepy for a short period of time. (20RT-6925.)
46
If a drug is given slowly in a drip, there is not much difference between the
blood and brain concentrations. (21RT-7320.)
Shafer is an expert in propofol pharmacokinetics. (19RT-5832.)
Using mathematical models, Shafer helped establish dosing guidelines for
propofol sedation, with regard to both monitored anesthesia care sedation
(MAC sedation), and sedation in the ICU.
15
(19RT-5818-5821; 20RT-6924.)
His recommendations were incorporated into the propofol package insert.
(19RT-5821-5824; Exhs. 211, 212.) Propofol is the chemical name for the
drug, and Diprivan is the trade name. (19RT-5822.) Propofol acts in the
brain, and not in the blood. For there to be an effect from propofol - falling
asleep, or not breathing - there has to be a concentration in the brain. (21RT-
7277.)
In the subject case, Shafer created PK-PD models for propofol levels,
based upon data from studies done by himself, defense expert Dr. White, and
others. He prepared models of various scenarios to determine if they were
supported by the data and evidence. (21RT-7275-7286, 7330-7331.) All of
his models used Jacksons femoral blood propofol concentration level.
(21RT-7290.)
The following simulations were rejected by Shafer because the
47
femoral vein propofol levels were too low: a single dose of 25-milligrams of
propofol; a 50-milligram IV administration of propofol diluted one-to-one
with lidocaine; a bolus dose of 100-milligrams of propofol; self-injection of
six 50-milligram propofol doses over three hours; and, self-administration of
six 100-milligram propofol doses over three hours. (21RT-7286-7292, 7295-
7303, 7315-7317.)
Shafer devised a model he feels is consistent with the evidence.
(21RT-7318-7319.) It assumes a 100-milliliter propofol infusion - and
Exhibit 30 is a 100-milliliter propofol vial. Shafer postulated that an infusion
began at 9:00 a.m., ran until noon, and all 100-milliliters were infused into
Jackson. In this model, propofol levels initially rise quickly until reaching a
concentration high enough so the amount of propofol the liver metabolizes is
about the same as the amount running into the patient. Levels continue to rise
as the propofol in the fat of the body rises and fill up. Between 9:00 and
10:00 a.m., Jacksons breathing would have slowed down, but the rising
carbon dioxide in his blood would keep him breathing. As the propofol levels
continued to rise, Jackson would be getting further into the danger zone, and
around noon, Jacksons breathing would start to slow down to the point of
apnea. Around 11:30 to 11:45 a.m., the flow of oxygen into the lungs would
stop, and within 10 to 20 minutes, the heart would stop, ending circulation,
and Jackson would die. Shafer opined that Jackson died with the infusion
48
running, which explains why the propofol levels were high. There was no
opportunity for rapid metabolism of propofol to occur, which is why the
propofol concentration in the femoral vein was at the apneic threshold.
(21RT-7318-7327.)
The above-described scenario is consistent with the propofol level in
the femoral vein, and the only scenario Shafer could generate that produced
levels consistent with appellants description of his usual practice of
administering propofol to Jackson by drip. It is also consistent with the 130
100-milliliter propofol vials appellant ordered, which suggests the use of one
vial per night, with more ordered for the future. This model also comports
with appellants statement that at some point he left Jackson alone in the
room. Shafer asserted this simulation fits all of the data in the case, he is
unaware of any inconsistent data, and it is what he thinks happened. The
stopping of circulation and the bottle running out of propofol are independent
events. Shafer simply timed them so they both occurred at noon.
(21RT-7327-7330.)
Using an IV-infusion set he brought with him, Shafer demonstrated
how to set up an infusion with a saline bag, based on his expert opinion of
what he thinks occurred. The injection port attaches to the IV-catheter which
in Jacksons case, was just below his left knee. There is a rubber Y-connector
where a needle can be inserted, and drugs administered. A catheter with a
49
metal needle is passed through the skin into a vein, and the catheter remains
inside the vein. The Y-port is about three feet away from the IV-catheter site.
Shafers demonstration was with a non-vented system - venting was not
necessary because the bag shrinks as fluid is removed. (29RT-7331-7339.)
To administer propofol by infusion, a second infusion is necessary.
The tubing would need to be vented, to allow propofol to flow out of the glass
bottle - and appellant ordered a vented infusion set. (21RT-7340-7341; Exh.
80.) The tubing was designed for use with an infusion pump, but there was
no pump at the scene, so it would have been spiked straight into a 100-
milliliter propofol bottle, which is consistent with the spike in the rubber
stopper of Exhibit 30. There is a plastic decal strip on the bottle that is used
to hang it from an IV-pole. (21RT-7342-7343.) When Exhibit 30 was
recovered, its decal hanging device was intact, unused, and attached to the
bottle. (21RT-7350-7354; 22RT-7511; Exh. 221, 221A.)
Appellant stated he shut off the saline by clamping the infusion line,
then slowly infused 25-milligrams of propofol over three to five minutes.
Shafer demonstrated how to draw up air in a syringe and inject it in the
propofol bottle, allowing him to remove 2.5 ccs of propofol. Appellant
would have injected propofol through the Y-port, causing it to go down the
tubing, but it would not go into the patient until the saline was unclamped,
because saline served as a carrier solution. (21RT-7357-7362.) The vented
50
propofol infusion line would be connected to the saline line at the same Y-port
by attaching a needle to the end. In his demonstration, Shafer hung the 100-
milliliter propofol bottle on the IV-pole, and ran propofol into the line.
(21RT-7362-7364.) Shafer testified it is an extremely unsafe setup because
gravity is responsible for driving both lines that are competing with each
other. The speed of the drip depends on the height of both the propofol drip
and the saline bag - and the roller clamp on each line is the only way to control
the drip rate. (21RT-7365-7366.)
A slit saline bag (Exh. 29) was recovered at the scene. Shafer had
never seen such a bag used to hang a propofol bottle, and he attempted to see
if it was possible. Assuming the tab handle on the bottle was not utilized, the
bottle would be placed inside the slit saline bag, and used to support the
bottle. The propofol in such a setup would continue to drip and infuse into
the patient, and the roller clamp on the line would be used to control the speed
of the drip. With the saline line going into the Y-port of the propofol line, it
would explain why the long tubing of Exhibit 157 did not test positive for
propofol, and why the short tubing beneath the Y-connector did test positive
for propofol. (21RT-7372-7375; 22RT-7523-7524.) This is the method by
which Shafer believes the infusion was provided to Jackson. (22RT-7524-
7525, 7562.)
Shafer prepared simulations for an immediate initial rapid bolus of
51
both 25 and 50 milligrams of propofol. He would expect to see apnea under
both circumstances, within the first one to two minutes, once the propofol got
into the brain. (23RT-7809-7811; Exhs GGG, HHH.) The peak effect of
propofol is typically 90 seconds after a bolus injection. (23RT-7822.)
Shafer charted two lorazepam doses based on appellants statement,
and determined it was inconsistent with the autopsy findings because Jackson
had more lorazepam by threefold. The data suggests appellant gave Jackson
a much higher dose than four-milligrams, and possibly an entire 40-milligram
vial. (21RT-7244-7247, 7251-7252; 22RT-7614, 7618; Exh. CCC.) Shafer
charted the two midazolam doses appellant said he gave, and determined the
concentration equated, but he did not think midazolam contributed to
Jacksons death. (22RT-7620.)
Once a two-milligram lorazepam pill is swallowed, it goes into the
stomach and dissolves over time. It goes into the liver, then the bloodstream,
and it circulates and distributes into multiple body tissues. It also diffuses
across the blood/brain barrier into the brain to exert its effect. Twenty-five
percent of the metabolite lorazepam glucuronate goes back into the stomach.
The bioavailability is 92 percent, and its half-life of absorption is about 22
minutes. (22RT-7615-7617.) Due to said half-life, and the amount found in
Jacksons stomach, Shafer concluded Jackson could not have taken any oral
lorazepam four hours prior to his death. If Jackson had taken lorazepam
52
orally, it would have occurred at or before 8:00 a.m. (21RT-7268-7272;
22RT-7619-7620, 7834.)
Expert Opinions re Self-Administration of Drugs By Jackson
Steinberg, Kamangar, and Shafer each opined that even if Jackson
self-administered lorazepam and/or propofol without appellants knowledge,
appellants actions would still be a direct cause of Jacksons death, because
it was a foreseeable risk. (18RT-5455-5456, 5545, 5550, 5620-5622;
19RT-5795; 20RT-7071-7072; 21RT-7372, 7380-7381; 22RT-7416-7617;
23RT-7872 .)
Defense Case
Character Witnesses
Six character witnesses testified on appellants behalf. Five were
former cardiac patients of appellant in Las Vegas: Gerry Causey (25RT-8422-
8440); Andrew Guest (25RT-8443-8454); Lunette Sampson (25RT-8455-
8469); and Dennis Hix (25RT-8469-8481.) One was a patient of appellant at
his Houston, Texas clinic - Ruby Mosley. (25RT-8483-8499.)

Urine & Gastric Samples Were Tested for Lorazepam
Scene and autopsy urine samples were tested for total lorazepam. The
scene urine level was 12.9, and the autopsy urine level was 15.1. (24RT-
8298-8300; Exhs. SSS, TTT.) The ingestion of a two-milligram lorazepam
53
pill would result in a .018 level. The elimination half-life of lorazepam is 12.9
hours. (24RT-8304-8306.)
The gastric contents were tested for free lorazepam. There was
approximately 1/333 of a two-milligram tablet in the stomach. (24RT-8320-
8324; Exh. 225.)
Dr. Paul White
Dr. Paul White is board certified in internal medicine and
anesthesiology. In 2010, he retired as a practicing anesthesiologist, and now
works as a consultant. White is affiliated with Cedars Sinai Medical Center
as a scientist directing research for the Department of Anesthesiology. (26RT-
8847-8852.)
White is an expert in the clinical use of propofol. (28RT-9305.) The
first propofol study conducted in the United States was published by White in
1986. Propofol was approved by the FDA for use in general anesthesia in
1989. White developed the use of propofol for minimal anesthetic care or
monitored anesthetic care (MAC) sedation. (26RT-8862-8863, 8897-8898,
8901.)
The defense presented a diagram setting forth their proposed theory
of the case. It depicts a slow infusion of 25-milligrams of propofol with 25-
milligrams of lidocaine given around 10:40 to 10:50 a.m, which would lose
its effect within 15 minutes; and a rapid injection of an additional 25-
54
milligrams of propofol and 25-milligrams of lidocaine before noon, resulting
in the peak concentration shown. The autopsy urinary level of free propofol
is consistent with this model. White opined that death occurred after Jackson
rapidly injected the second bolus dose between 11:30 a.m. and noon. (27RT-
9102-9104; Exh. VVVV.)
White opined that a model prepared by bio-engineer Gabriella Ornelas
reflects a likely scenario with regard to Jacksons lorazepam levels. (27RT-
9051, 9057-9059; 28RT-9363; Exh. KKKK.) It incorporates two-milligram
injections of lorazepam at 2:00 and 5:00 a.m., consistent with appellants
statement, followed by the oral ingestion of 20-milligrams of lorazepam at
7:00 a.m. (about ten 2-milligram pills), achieving a peak in about two hours,
then declining to the amount measured at autopsy. (27RT-9052-9053.) This
model assumes Jackson started with a zero blood level, which may not be
accurate because there was evidence Jackson had received lorazepam the day
before. Another model was prepared that begins with a residual based on an
assumption Jackson could have previously received ten-milligrams a day for
five days. (27RT-9054; Exh. LLLL.) Using said residual, the autopsy level
could be achieved by an oral ingestion of eight pills in addition to the 2:00 and
5:00 a.m. injections. The eight pills could have been taken at 4:00 or 6:00
a.m., or any other time in the morning in various numbers or combination.
This scenario also corresponds with the residual lorazepam found in the
16
Measuring blood samples will not indicate whether lorazepam was
taken orally or intravenously, because lorazepam has a high bioavailability.
(29RT-9615.)
55
stomach.
16
(27RT-9055-9056.)
Exactly when and how many pills Jackson took is uncertain, but he
most likely took eight 2-milligram pills between 4:00 and 8:00 a.m.
Lorazepam dissolves fairly quickly, and achieves its peak level in 22 to 40
minutes. Oral lorazepam has a 93 percent bioavailability. The fact there was
a small amount of lorazepam in Jacksons stomach is consistent with oral
administration. (27RT-9061-9064.) If all the lorazepam had been given
intravenously, there should not have been any free lorazepam in the stomach.
(27RT-9066.)
A possible scenario, according to White, is Jackson self-administered
25-milligrams of propofol from the syringe in which appellant had drawn up
50-milligrams, and only administered half, and Jackson did so through the IV
Y-port when appellant was on the phone or in the bathroom. (28RT-9387,
9390-9394.) White found absolutely no evidence of a propofol infusion on
June 25th. (28RT-9398.)
Whites testimony and opinion is based on the likelihood Jackson
received two bolus injections of 25-milligrams of propofol, rather than a 100-
milliliter propofol infusion over a three-hour period. A model created by
Ornelas reflects appellant infusing 25-milligrams of propofol at 10:40 a.m.,
56
and Jackson self-administering the same amount in a rapid bolus between
11:30 and noon, when his propofol blood level was about zero. (28RT-9446-
9447; Exh. VVVV.) The second bolus causes the blood level to rise to about
4.3. The model also shows the expected urine levels of propofol. This model
is consistent with the following: Whites theory of two separate bolus
injections, appellants statement to the police, a second IV-line not being
recovered at the scene, the absence of an IV-line containing propofol residue,
and the concentration of free propofol in the urine. (28RT-9453-9454.)
A very rapid administration of propofol can cause cardiac arrest.
Arrhythmia can occur, resulting in the rapid demise of the patient. (28RT-
9341-9342.) Jacksons circulation likely would have stopped when the rapid
bolus was injected, and arrhythmia could have occurred. White believed
Jackson died of cardiac arrest. (28RT-9454, 9468.)
Dr. Allan Metzger
Dr. Allan Metzger met Jackson in the early to mid-1980s, and at
some point became Jacksons primary internal medicine physician. (23RT-
7954-7956.) On June 23, 2003, Jackson came into Metzgers Los Angeles
office after relating he was taking Xanax for sleep. Their next contact was in
June of 2008, when Jackson was under stress and taking Tylenol PM for
sleep. (23RT-7958-7960.)
On April 18th, Metzger visited Jackson. They discussed medical
17
Jackson brought his sleep disorder to Metzgers attention 15 to 20
years before, and Metzger infrequently treated him for it. Metzger knew sleep
was an issue for Jackson particularly after performing, as he had traveled on
tours with Jackson. (23RT-7966.)
57
issues, Jacksons profound sleep disorder, stress, and the physical and
emotional strain Jackson was under because of his scheduled tour rehearsals.
17
Jackson asked Metzger about intravenous sleep medicine. Metzger told
Jackson it was dangerous, life-threatening, and should not be given outside of
a hospital. Metzger prescribed some medication, and told Jackson to let him
know which was helpful. He never spoke to Jackson again. (23RT-7962-
7968, 7972-7974.)
Cherilyn Lee
Cherilyn Lee is a holistic board certified nurse practitioner who runs
an integrated clinic offering nutritionally based treatment with natural
remedies and supplements. Lee began treating Jackson in the beginning of
February. One of Jacksons chief complaints was fatigue, and he had
difficulty falling asleep. (23RT-7984-7996, 7999.) Lee began going to
Jacksons home in the mornings. She made him very high-concentrated, high-
protein smoothies that helped with energy. Lee gave Jackson B-12 shots, and
placed him on nutritional IVs. In mid and late February, and on April 12th,
Jackson told Lee he was having difficulty sleeping. Lee continued to provide
Jackson nutritional therapy until mid-April. (23RT-8001-8010, 8143, 8156,
58
8167-8169.)
On April 19th, Jackson said he was having a lot of difficulty sleeping,
and that after concerts or rehearsals, it was hard to fall asleep. (24RT-8143,
8155.) Jackson expressed the need for Diprivan to help him sleep, and said
it was the only thing that would help him fall asleep immediately. Lee was not
familiar with the drug. (24RT-8145-8146, 8170.)
Lee did some research on Diprivan, learned it is an anesthetic not
used in a home setting, and she told Jackson what she learned. Jackson said
he needed someone to come to his home, and it would be safe as long as he
was being monitored. He later said he previously received Diprivan for
surgery, and knew it would knock him out once it got into his vein.
(24RT-8150-8153, 8173-8175.)
Around April 19th, Lee went to Jacksons home, provided him natural
sleep remedies, and observed him sleep. (23RT-8012-8013.) When Jackson
woke up, he was unhappy he had not slept longer. He said the nutritional
proponents were not working, and reiterated his need for Diprivan. Lee never
saw Jackson again. (24RT-8154-8157, 8176.)
On June 21st, Jackson had some troubling symptoms. (9RT-
2938-2939.) Muhammad called Lee, and said Jackson wanted to see her. Lee
heard Jackson saying, Tell her whats happening with me, that one half of my
body is hot and one half of my body is cold. (24RT-8158.) Lee was in
59
Florida, and told Muhammad that Jackson needed to go to the hospital. She
thought Jackson might be having symptoms from taking Diprivan.
(24RT-8159.)
Brandon Phillips
At a production meeting in early June, Jackson lacked his usual focus.
Afterwards, Phillips asked Williams if everything was okay. Williams replied,
No. He just came from Dr. Kleins office. (24RT-8261.) Phillips did not
know what that meant. He approached appellant, told him Jackson was seeing
Klein for some kind of treatment, and asked appellant if he was aware of it.
Appellant either said he knew about it or would check into it. (24RT-8261,
8276.)
The tour production was supposed to move to London around late
June. As the date approached, the pressure on Ortega and the entire
production increased. Phillips had a phone conversation with Williams, and
told him it was critical for Jackson to attend rehearsals. Phillips might have
spoken to appellant. (24RT-8255-8256.)
Phillips received Ortegas June 20th e-mail. It was the first time he
heard the phrase pulling the plug with regard to the tour. Nobody on
Phillips end ever contemplated canceling the tour. (24RT-8257-8259; Exh.
1.) AEG and Jackson had a contractual obligation to each other, and
canceling the show would required a mutual decision. Jackson was
60
contractually responsible for pre-production costs of the tour. (24RT-8287-
8288.)
In response to Ortegas e-mail, Phillips set up a meeting at Carolwood.
Ortega voiced his concern that Jackson needed to focus, pay attention, and be
engaged, and said it was a massive production that needed to be built around
Jackson. Appellant reassured everyone Jackson would be focused. Jackson
said he was ready for the tour, and Ortega was pleased. (24RT-8256-8259,
8263-8265, 8280.)
Phillips was present at rehearsals on June 23rd and 24th. (24RT-8266-
8267.) He described the June 24th rehearsal as amazing. Afterwards,
Jackson told Phillips he was ready for the tour. (24RT-8281.) Phillips
described Jacksons demeanor as, genius, and noted Jacksons attention to
detail was phenomenal, both musically and visually. He felt Jackson was
always motivated, receptive and energized to embark on the tour.
(24RT-8277.)

Dr. Robert Waldman
Robert Waldman is a physician who specializes in addiction medicine.
(26RT-8706-8708, 8781.) An addiction involves a repetitive behavior pattern
that can result in harm or illness to a patient, that continues despite adverse
consequences. Dependence implies a physical need for a substance, but is not
a behavior pattern, and might not be associated with adverse consequences.
61
A withdrawal symptom implies a physical dependence. (26RT-8714.)
The purpose of opioids, which include Demerol, is pain relief. Patients
with addictions to different kinds of opioids have similar symptoms. It is
unsafe and extremely uncomfortable for a person addicted to pain killers to
go cold turkey. (26RT-8715-8718.) Symptoms from opioid withdrawal
consist of sweating, increased heart rate, muscular aches and pains, bone pain,
nausea, abdominal cramps, diarrhea, severe anxiety, severe restlessness,
insomnia, and temperature disregulation (hot and cold chills are very
common.) (26RT-8723, 8726.) Anxiety, restlessness, and insomnia are the
biggest problems. The simplest way to end opioid withdrawal symptoms is
to provide an opiate. (26RT-8753-8755.)
Waldman reviewed Kleins medical records for Jackson for the period
January to June 22nd, along with statements and testimony from witnesses.
Kleins records refer to Jackson as Omar Arnold, and include many
references to Restylane, Botox, Demerol and midazolam. (26RT-8733-8735,
8741; Exh. UUU.) They indicate that on March 12th, Jackson received Botox
and Restylane, and injections of 100-milligrams of Demerol and 1-milligram
of midazolam at 11:30 a.m.; and another 100-milligrams of Demerol at noon.
(26RT-8734-8739.) These doses were in excess of reasonable ones, and
suggest Jackson was not opioid naive. A starting recommended dose for an
opiate naive person is 50-milligrams. If such a person received a 200-
62
milligram dose, they would become sleepy, lethargic, possibly difficult to
arouse, and perhaps unresponsive. The goal with Demerol is pain relief, and
the appropriate dose should be adjusted depending upon the degree of pain.
(26RT-8739-8741, 8744.)
Kleins records show Jackson received the following total doses of
Demerol (the majority of Demerol injections included one-milligram of
midazolam): March 17th, April 6th, 9th, 13th and 15th - 200-milligrams;
April 17th and 21st - 300-milligrams. The fact a single day dose increased
from 200 to 300 milligrams suggests Jackson was no longer receiving a
therapeutic effect from the lower dosage, which is consistent with developing
a tolerance. (26RT-8740-8743.)
Kleins records reflect Jackson received the following total Demerol
doses: April 22nd - 375-milligrams; April 23rd - 100-milligrams; April 27th,
30th, and May 4th, 5th and 6th - 300-milligrams; May 19th and 20th - 200-
milligrams; May 21st - 100-milligrams; June 1st, 3rd, and 9th - 200-
milligrams; June 16th and 22nd - 100-milligrams. (26RT-8744-8753.)
Waldman opined Jackson was dependent on Demerol, and he was highly
suspicious that Jackson was addicted to Demerol. (26RT-8748-8749, 8763-
8764.)
63
Rebuttal Case
In his infusion theory, Shafer did not designate a precise time Jackson
stopped breathing. His model was to show Jackson could have died anytime
when he had a high propofol concentration in his blood. (29RT- 9644-9645.)
A serious risk from propofol is the cessation of breathing. Shafer opined that
Jacksons failure to breathe led to the failure of cardiac activity, resulting in
death. (29RT-9647.)
The autopsy lidocaine levels are completely consistent with Shafers
hypothesis. His simulations involve lidocaine going in simultaneously with
propofol, based upon appellants statement that Jackson was very concerned
about pain on injection. It is very simple to remove some propofol from the
glass vial, and replace it with lidocaine. (29RT-9646-9647.)
Shafer could not scientifically exclude the possibility that Jackson took
lorazepam orally. (29RT-9643-9644.)
64
ARGUMENT
I.
APPELLANTS CONVICTION FOR INVOLUNTARY
MANSLAUGHTER VIOLATES HIS STATE AND
FEDERAL CONSTITUTIONAL RIGHT TO DUE
PROCESS BECAUSE THE EVIDENCE FAILS TO
ESTABLISH THE ELEMENTS OF THE OFFENSE
A. Introduction
Appellant was convicted of involuntary manslaughter for the death of
Michael Jackson. His conviction violates his state and federal constitutional
right to due process because the evidence fails to establish the elements of the
offense. As illustrated below, the prosecution did not prove that any act or
failure to act by appellant was a causative factor in Jacksons death. The
propofol infusion theory offered by the prosecutions expert was not
supported by the evidence, and was so absurd, improbable and unbelievable,
that a rational trier of fact could not have concluded appellant placed Jackson
on a propofol drip on the day he died. Additionally, the evidence fails to
support the prosecutions alternate theory that if Jackson self-administered the
lethal dose of propofol, appellant was criminally liable for Jacksons death,
because self-administration was a foreseeable act. Reversal of appellants
conviction is therefore required.
B. Standard of Review
The due process clause of the Federal Constitution prohibits the
65
criminal conviction of any person except upon proof beyond a reasonable
doubt. (U.S. Const., 14th Amend.; Jackson v. Virginia (1979) 443 U.S. 307,
319; In re Winship (1970) 397 U.S. 358, 364.) There must be substantial
evidence to support a conviction, such that a reasonable jury could find guilt
beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
Substantial evidence consists of evidence that reasonably inspires confidence
and is of solid value. (People v. Marshall (1997) 15 Cal.4th 1, 34.)
All conflicts in the evidence and reasonable inferences must be
resolved in favor of the judgment. (People v. Maury (2003) 30 Cal.4th 342,
396.) Reasonable inferences, however, must be based on substantial
evidence, not on suspicion, speculation, supposition, surmise, or conjecture.
(People v. Raley (1992) 2 Cal.4th 870, 891.)
Convictions may be reversed for insufficiency of the evidence where
the prosecution evidence is so thoroughly impeached, inherently improbable,
conflicting, or otherwise inherently suspect in content so that no matter how
sincerely it was delivered, it would not inspire confidence in a reasonable trier
of fact. (People v. Headlee (1941) 18 Cal.2d 266, 273-275; People v.
Williamson (1984) 161 Cal.App.3d 336, 340-341.)
C. The Offense of Involuntary Manslaughter
Section 192 provides in relevant part:
Manslaughter is the unlawful killing of a human being without
66
malice. It is of three kinds:
* * *
(b) Involuntary--in the commission of an unlawful act, not
amounting to felony; or in the commission of a lawful act which
might produce death, in an unlawful manner, or without due
caution and circumspection.
The statutory phrase ,without due caution and circumspection, refers
to criminal negligence. (People v. Evers (1992) 10 Cal.App.4th 588, 596.)
An act is criminally negligent when a man of ordinary prudence would
foresee that the act would cause a high degree of risk or great bodily harm.
(People v. Butler (2010) 187 Cal.App.4th 998, 1014, citing People v.
Rodriguez (1960) 186 Cal.App.2d 433, 440.)
Involuntary manslaughter requires a showing that the victims death
was proximately caused by the defendants conduct. (People v. Sanchez
(2001) 26 Cal.4th 834, 845; People v. Brady (2005) 129 Cal.App.4th 1314,
1324.) There may be multiple proximate causes of a homicide, even where
there is only one known actual or direct cause of death. (Sanchez, supra, at
p. 846.) A concurrent cause is one that was operative at the time of death, and
with another cause acted to produce the death. (People v. Jennings (2010) 50
Cal.4th 616, 643.) When concurrent causes exist, the defendant is criminally
responsible only if his conduct was a substantial factor contributing to the
victims death. (People v. Catlin (2001) 26 Cal.4th 81, 155.)
67
An intervening cause may relieve a defendant of criminal liability if it
is an unforeseeable and extraordinary occurrence. (People v. Crew (2003)
31 Cal.4th 822, 847.) A defendant will remain criminally liable if either the
possible consequence might reasonably have been contemplated or the
defendant should have foreseen the possibility of harm of the kind that could
result from his act. (Ibid.)

D. The Jury Was Instructed On Two Different
Theories of Involuntary Manslaughter
As to the first theory, the jury received a modified version of
CALCRIM No. 581. It states in relevant part:
To prove that the defendant is guilty of this crime based
upon this particular theory, the People must prove that:
1. The defendant committed a lawful act but
acted with criminal negligence;
AND
2. The defendants act caused the death of the
alleged victim, Michael Joseph Jackson.
The People allege that the defendant committed the
following lawful act with criminal negligence: the defendant as
a licensed physician administered Propofol.
(11CT-2630; 29A-RT-9935.)
With regard to the second theory, the jury was instructed with a
modified version of CALCRIM No. 582. It states in pertinent part:
To prove that the defendant is guilty of this crime, the
68
People must prove that:
1. The defendant had a legal duty to Michael
Joseph Jackson;
2. The defendant failed to perform that legal duty;
3. The defendants failure to perform that legal duty was
criminally negligent;
AND
4. The defendants failure to perform that legal
duty caused the death of Michael Joseph Jackson.
A physician who has assumed the responsibility to treat
and care for a patient has a legal duty to treat and care for that
patient.
(11CT-2630-2631; 29A-RT-9937.)
E. The Prosecution Failed to Establish That Any
Act of Appellant or His Failure to Perform a
Legal Duty Was a Causative Factor in
Jacksons Death
1. The Evidence Did Not Establish
Appellant Administered Propofol
to Jackson With Criminal
Negligence and/or That Said Act
Caused or Was a Substantial
Factor in Causing Jacksons
Death
Causation was the key issue in the case. (See 29A-RT 9946-9947.)
Although the coroner determined Jackson died from acute propofol
intoxication, with benzodiazepine effect as a contributing condition (17RT-
5198), the question each side endeavored to answer was the manner in which
18
There are two ways to administer drugs through an intravenous
injection: (1) a bolus - the entire dose is injected with a syringe; and (2) an
infusion or drip - the dose is dripped in slowly. (20RT-6948-6949.)
69
Jackson received the lethal propofol dose. The prosecutions theory was that
appellant administered propofol to Jackson with criminal negligence, and said
act was a substantial factor in causing Jacksons death. It contended appellant
placed Jackson on a continuous IV propofol infusion (drip), he walked out of
the bedroom leaving Jackson alone and unmonitored, and while he was gone,
the propofol, combined with the benzodiazepines already in Jacksons system,
caused Jackson to go into respiratory arrest, resulting in his death
approximately ten minutes later.
18
The defense theory was that Jackson was
only on a saline drip when he died. It contended appellant slowly injected a
single small dose of propofol to Jackson from a syringe through the IV Y-port,
and appellant thereafter stayed with Jackson and monitored him until the
effect of the propofol was out of his system. Then, when appellant was
outside Jacksons bedroom, Jackson rapidly self-injected a second dose of
propofol that quickly resulted in cardiac arrest and his death.
a. The Evidence Failed to
Establish Jackson Was on
a Propofol Drip on June
25th
Neither the physical evidence nor the toxicology results supported the
prosecutions theory that Jackson was on a propofol drip when he died. As
70
a result, the prosecutions case was in large part based on the somewhat
bizarre and incredible testimony of its expert, Dr. Shafer, who proposed that
appellant had set up an unstable, unconventional, rudimentary IV-
administration mechanism in which a 100-milliliter propofol bottle (Exhibit
30), was placed upside down inside an empty slit saline IV-bag (Exhibit 29).
Instead of using the decal hanging device on the side of the propofol bottle,
which was still intact when recovered at the scene, Shafer suggested the bottle
had been supported by the empty saline bag, which was hung from the IV-
stand. According to Shafer, the rubber stopper on the bottle was punctured
with a spike attached to the proximal end of the IV-tubing, and the tubing was
connected to the Y-port (an integral part of the distal region of the IV-
apparatus nearest the catheter insertion site of the patient). (21RT-7342,
7372-7375; 22RT-7515, 7524-7525.)
The components of the IV-apparatus found at the scene were consistent
with appellants statement that he had only placed Jackson on a saline drip.
(See 14RT-4353-4358; Exhs. 156-160.) Although Shafers infusion theory
required a vented IV-tubing line to serve as a vehicle for the propofol to travel
from the propofol vial to the Y-port of the normal saline drip tubing, no
propofol or other drugs were detected in the spike or long section of vented
19
Shafers scenario required a parallel infusion system - a saline
infusion and a propofol infusion that connected at the Y-port. (See 21RT-
7370-7371.)
71
IV-tubing found above the Y-port.
19
(15RT-4673; 22RT-7535; 23RT-7860;
27RT-9093-9094.) It is significant that a second long vented IV-line was
never recovered. The additional fact that propofol, lidocaine, and Flumazenil
were detected in the Y-port with the attached segment of short tubing (below
the Y-port), is consistent with propofol delivery by use of a syringe.
(15RT-4672.) This evidence is also consistent with the defense theory that
Jackson self-administered the lethal dose of propofol, and appellant, in trying
to save Jackson, gave him a bolus dose of Flumazenil, the antidote for
lorazepam and other benzodiazepines. (12RT-3750-3753.)
Due to the absence of a critical component of the IV-system described
by Shafer, the prosecution tried to convince the jury that appellant had
grabbed the vented IV-line, and placed it in a pocket on the side of his cargo
pants before going downstairs to the ambulance. Shafer testified such an IV-
line can fit into the palm of ones hand, and easily fit in a pocket, and defense
expert White agreed. (21RT-7377-7378; 28RT-9349-9350.) The prosecution
presented three photographs of appellant at the hospital, demonstrating that
on June 25th, he had been wearing cargo pants with large pockets on both
sides. (17RT-5116-5118; Exhs. 203-205.) During the prosecutors closing
argument, he discussed one of the photographs, and emphasized appellant had
72
a big cargo pocket on the left side of the pant leg, and large pockets on
both sides of his pants, thereby impliedly suggesting appellant had absconded
with the IV-line. (29A-RT-9989.) If an IV-line used in a propofol infusion
had been placed in appellants pocket, it would have been dripping propofol
and resulted in a messy wet pocket. (28RT-9501.) Such a result is not
reflected in any photograph, testimony, or statement of any witness. Had a
propofol drip existed in the manner suggested by Shafer, and appellant wanted
to hide evidence thereof, he likely would have taken the vented IV-tubing and
the propofol vial when he left for the hospital. The prosecutions cargo pants
pocket contention was clearly based on pure speculation, and the absence of
a long vented IV-line with propofol residue is fatal to the prosecutions
infusion theory.
There is no plausible explanation for the existence of a propofol drip
set up with a 100-milliliter propofol vial placed upside down at an angle
inside an empty slit saline bag. White testified such a mechanism would result
in an unstable delivery method because the bottle was not secured, and it
could slip out of the bag with any kind of movement or tugging. It was
befuddling to him that such a delivery system would have been utilized
because the bottle comes with a hanging device. White testified it would
constitute a very cumbersome and very difficult delivery method, and he
had never seen or heard of using such an abnormal technique. (27RT-9084,
73
9089-9091.)
Even Shafer admitted not previously seeing anything like a slit bag IV-
apparatus. He testified he had never seen anyone implement such a device,
Other than knowing that Dr. Murray did it. Defense counsel asked Shafer
how he knew appellant had done so, and Shafer responded that the only
evidence was the slit IV-bag found at the scene. (22RT-7549.) Shafer
subsequently testified that based on Alvarezs statement, he made the
assessment about the propofol bottle being propped up in the saline bag.
(22RT-7556.) The credibility of Alvarez, however, is highly questionable,
and his memory miraculously seemed to improve over time.
During trial, Alvarez testified that when he was in Jacksons bedroom
on June 25th, appellant pointed to a saline bag hanging on the right side of the
IV-stand, and instructed him to put it in a blue bag. Alvarez claimed that as
he removed the saline bag, he noticed a bottle inside, as well as a milky white
substance on the bottom of the bag. (10RT-3045, 3051-3055.) He testified
the saline bag was otherwise clean and clear, and Exhibit 29 appeared to be
the bag he had seen on the IV-stand. (10RT-3058-3060.) Alvarez also
testified the Exhibit 30 propofol bottle appeared to be the same bottle he had
seen inside the saline bag, with its metal rimmed stopper slanted sideways
towards the port at the bottom of the bag. (10RT-3064-3067.) He denied
seeing any tubing connected to the Exhibit 29 bag. (10RT-3159.)
74
Despite Alvarezs claim that there was a milky white substance at the
bottom of the bag, Exhibit 29 is clear, and does not contain any white residue.
(10RT-3097; 15RT-4557-4559.) There was no evidence whatsoever, that the
bag contained propofol residue. The first time Alvarez mentioned to anyone
in law enforcement that he had seen a vial, bottle, or a bag in Jacksons
bedroom, or that appellant asked him to put vials or bags away, was on
August 31st, more than two months after Jackson died. (17RT-5138;
23RT-7929.) Alvarez testified it was not until he saw a television report
showing detectives coming out of Jacksons residence after collecting
evidence, and discussing appellant and the fact that propofol is milky, that
he realized he had touched something that resembled that milky substance.
(10RT-3160-3161.) Although four identifiable fingerprints were obtained
from Exhibit 29, and Alvarez was not wearing gloves when he purportedly
grabbed the bag, his prints were eliminated as a source thereof. (10RT-3136;
15RT-4602; 19RT-5839; Exhs. 167, 213.)
On August 31st, four days after the Coroners office issued a press
release on the cause of Jacksons death, Alvarez drew a very simple picture
as he was describing the saline bag to the police. According to Detective
Martinez, the drawing depicts the IV-stand with an attached bag with a bottle,
a milky white substance inside the bag, and an IV-line on the right side.
(10RT-3093; 17RT-5139-5141; 23RT-7932; Exh. 27.) During a meeting at
75
the prosecutors office in April of 2011 (22 months following Jacksons
death), Alvarez made another drawing of the saline bag at the prosecutors
request, after he was shown the actual saline bag at the meeting. It is a more
sophisticated drawing, depicting a nub at the bottom. (10RT-3093-3094;
23RT-7939-7940, 7947-7948; Exh. 27.)
At trial, Alvarez described what he did after walking into Jacksons
bedroom on June 25th. His phone conversation with Williams ended at
12:19:28 p.m., he called 911 at 12:20 p.m., and thus he would have been
required to accomplish the following in a period of 92 seconds or less: walk
into the room, reach for his phone, escort the children out to the landing while
consoling them, close the door, pick up the plastic bag, put the plastic bag into
the brown bag, walk to the IV-stand, take down the IV-bag, and place it in the
Costco bag. (See 10RT-3024, 3026, 3029, 3032-3033, 3042-3043, 3051-
3052, 3064-3065, 3070-3071; Exhs. 26, G.) When asked how it was possible
to accomplish so much during such a short time, Alvarez responded, I am
very efficient, Sir. (10RT-3176.)
The testimony of the coroners investigator calls into question whether
the Exhibit 30 bottle was actually recovered inside the Exhibit 29 bag. Fleak
testified that on June 29th, she found a blue Costco bag in the upper cabinet
area in the closet room adjacent to Jacksons bedroom, and from said bag she
recovered the propofol bottle and slit saline bag. (14RT-4328-4329.) Her
76
notes from June 29th reflect she recovered from the Costco bag, Medical IV
bag cut open, 100 [sic] ml n/a chloride 9.9 [sic] percent, and, One 100-
milliliter propofol open with liquid, printed. Absent from Fleaks notes is
any indication that the propofol bottle was found inside the cut saline bag.
(15RT- 4540-4541.) When the items were photographed, the propofol bottle
was not inside the saline bag. During trial, Fleak claimed she took the bottle
out of the saline bag to see if it was propofol, and then she set it on top of the
saline bag and took a photograph. (15RT-4586-4587, 4595.)
At the January 7, 2011 preliminary hearing, Fleak testified she found
the propofol bottle inside the cut saline bag. She claimed she had not
previously been asked about it. (15RT-4586.) It was not until March 29,
2011 - one year and nine months after Jacksons death - that Fleak first stated
in her case notes that there had been a propofol bottle inside an IV-bag.
(15RT-4541.)
The contents of the blue Costco bag included empty drug vials, a
bloody pad or piece of gauze, and a plastic bag full of medical debris.
(14RT-4337-4339, 4342-4345; Exh. 133.) The fact Exhibits 29 and 30 were
found in a bag containing mostly medical waste and trash, strongly suggests
that they were medical waste, rather than components of a rather preposterous
IV-administration system.
The prosecution may have relied on such an implausible IV-mechanism
77
to prove the presence of a propofol drip because of something that occurred
at trial. When Shafer was demonstrating how to set up a propofol drip, it
became evident, likely inadvertently, that the decal hanging tab on the Exhibit
30 bottle had never been deployed. Shafer first demonstrated how to set up
an IV-infusion with a saline bag. (21RT-7331-7337.) He then explained that
a separate infusion line would be necessary to set up a propofol drip. Shafer
showed how the IV-tubing would be spiked directly into the rubber stopper
of the propofol bottle, and how the bottle would be hung upside down on the
IV-stand by utilizing the plastic decal hanging strip that comes on the side of
the bottle. (21RT-7340-7344.)
After demonstrating how to hang a propofol bottle with the decal
device, while using his own 100-milliliter vial, the prosecutor asked Shafer if
Exhibit 30 had such an apparatus. Shafer responded that it did. Immediately
thereafter, defense counsel asked to approach the bench. He informed the
court that the prosecutor had just taken an exhibit that was important to the
defense, Exhibit 30, and destroyed its integrity by popping open the hanging
tab that had not previously been deployed. The court stated, Mr. Walgren
didnt open it. The prosecutor responded, I did. I did. Defense counsel
argued it completely affects this evidence, destroys our ability to show the
tab had not been used. (21RT-7344.) Subsequently the parties stipulated that
the hanging tab device on Exhibit 30 was intact and unused when recovered
78
at the scene, and that the prosecutor had lifted it. (21RT-7350-7354;
22RT-7511; Exhs. 221, 221A.)
Because the jury learned the hanging device on Exhibit 30 had not
previously been deployed, the prosecution was forced to come up with an
alternate method of hanging the bottle in its attempt to prove Jackson had
been on a propofol drip. Since Fleak testified she found the Exhibit 30 bottle
inside the Exhibit 29 slit bag, the prosecution concocted the novel and
ridiculous method of placing the vial into the bag through the slit, hanging the
bottle upside down at an angle using the bag for support, then hanging the bag
from the IV-stand.
Shafer testified the approximate two-millimeter tear in the rubber
stopper of Exhibit 30 was consistent with it having been spiked for the
purpose of directly connecting the IV-line to the bottle. (21RT-7342.) This
fact, however, does not support the prosecutions slit IV-bag propofol
infusion theory, because of the absence of a second long IV-line, or a single
vented long IV-line containing propofol residue. White explained that one
way to administer a propofol infusion is to spike a bottle, empty it into a saline
bag, and mix it. (27RT-9091.) The spike mark in the Exhibit 30 stopper is
consistent with appellant having previously given Jackson a propofol infusion
in this manner, as early as three nights before Jacksons death, when he was
still placing Jackson on nightly propofol infusions.
20
All of the simulations Shafer prepared for the prosecution were
based on the assumption of a respiratory arrest. (23RT-7847.)
79
Appellants fingerprint was found on the Exhibit 30 vial. (15RT-4602;
Exh. 167.) This fact, however, fails to support the prosecutions infusion
theory. Since appellant admitted placing Jackson on nightly propofol
infusions for approximately two months (until three days before Jackson
died), and giving Jackson a single 25-milligram propofol injection on June
25th, one would expect his fingerprint to be on the vial.
There are additional evidentiary problems with the prosecutions
theory. It fails to comport with the autopsy lidocaine levels. (29RT-9626; see
also Argument II, post.) Shafers proposed scenario is based on the
assumption of a respiratory arrest (apnea), and it requires the incredible
coincidence of a three-hour propofol drip running out exactly at the time of
Jacksons death.
20
(21RT-7327, 7330; 23RT-7840, 7847; Exh. NNN.) If, as
the defense contended, arrhythmic cardiac arrest had occurred, circulation
would have stopped immediately, and there would not have been an additional
ten minutes of systemic circulation necessary for continued propofol
metabolism. Under such a scenario, a three-hour 100-milliliter propofol
infusion would not have resulted in the autopsy propofol femoral blood level.
The medical examiner testified it was possible that the combination of the
sedatives and propofol could have resulted in a quicker or enhanced
80
depression of the cardiovascular system and caused the heart to stop beating,
and White agreed. (17RT-5199; 28RT-9459-9460.) In fact, White opined a
cardiac event led to Jacksons death. (28RT-9468.)
Perhaps one of the most important pieces of evidence contradicting
Shafers theory was essentially overlooked at trial - the toxicology results for
propofol concentration in the vitreous fluid. A vitreous sample is taken from
the clear fluid behind the eyeball, and it holds drugs and their concentrations
very well. (15RT-4633.) Propofol acts in the brain, and not in the blood or
cardiovascular system, and in order for there to be an effect from propofol,
such as falling asleep or not breathing, there has to be a concentration in the
brain. (21RT-7277; 28RT-9466.) Shafer explained that when a bolus dose
of propofol is injected, the blood concentration is very high. The brain
concentration is zero, and after one and a half or two minutes, it rises and
reaches a peak. In order to be metabolized, the propofol has to move out of
the brain. The metabolism of propofol is so fast that if a persons circulation
keeps going, the drug goes away. As long as the heart is beating and there is
circulation, there is propofol metabolism. Asphyxial cardiac arrest occurs
when the heart stops beating due to the lack of oxygen. (21RT-7283, 7285,
7287-7288.)
The autopsy specimens tested in the coroners laboratory included the
heart blood, femoral blood, liver, gastric, and vitreous. (15RT-4631.) The
21
In a volunteer study, the brain concentration level of a drug cannot
be measured due to lack of access to a slice of the subjects brain. Shafer uses
an electroencephalogram (EEG) to measure brain waves, in order to
precisely measure the drug effect. By doing so, Shafer is able to understand
both the blood and brain concentrations of any dose of propofol. He used
EEG data in his models. (21RT-7276-7279.)
22
Anderson testified the vitreous toxicology results showed there was
not enough fluid to do a full analysis. He concluded, without stating any basis
therefore, that the results showed propofol does not distribute very well to the
eyeball fluid. (15RT-4683.)
81
vitreous was the specimen obtained from the area closest to Jacksons brain.
A propofol concentration in the effected site (the brain) of 2.3, plus or minus
0.5, can cause apnea (cessation of breathing).
21
Shafer testified that using two
standard deviations accounts for the most sensitive and resistant of patients,
and at a level of 1.3, only five percent of patients are at risk. At a 3.3 level,
95 percent of patients are at risk of apnea. (21RT-7276-7283.)
In Jacksons case, the propofol concentration in the vitreous was
present at less than 0.40. (15RT-4614, 4659.) This result demonstrates that
the propofol brain level was well below the risk of apnea for even the most
sensitive patient.
22
In other words, there was no risk of apnea for any patient.
This data is significant because it demonstrates Jackson could not have died
as a result of a respiratory arrest. It serves to invalidate Shafers propofol
infusion theory, which assumed respiratory arrest. Based on the propofol
concentrations of the heart blood at 3.2, femoral blood at 2.6, and less than
0.40 in the vitreous fluid, it can be assumed Jackson died quickly from cardiac
82
arrest, rather than respiratory arrest, because there was not enough time for the
propofol concentration to increase in the brain and achieve the minimal apneic
threshold of 1.3. (15RT-4645-4647; 21RT-7283, 7287-7288.) Significantly,
cardiac arrest would not have resulted in the additional ten minutes of
propofol metabolism necessary to validate Shafers model.
It is possible to come up with any number of dosage simulations by
working backwards, and according to White, that is essentially what Shafer
did. (27RT-9048.) For example, Shafer presented a bizarre model to account
for the autopsy lorazepam levels. It consists of Jackson receiving nine 4-
milligram lorazepam injections every 30 minutes beginning at 1:30 a.m. The
last few injections would have been given when Jackson was at a high
lorazepam blood level, and expected to be asleep. (23RT-7874-7875;
27RT-9047-9049; Exhs. 223, IIII.) Shafer originally created a model
consisting of ten 4-milligram lorazepam injections every 30 minutes
beginning at midnight. Although such a model accounts for the entire content
of the 40-milliliter empty lorazepam vial found at the scene, it would have
required Jackson to receive the first dose while he was still at Staples, and the
second dose when he was on his way home. Additionally, as pointed out by
White, after receiving so many lorazepam injections over the course of five
hours, the average patient would be comatose for many hours, and possibly
dead. (23RT-7253-7254; 27RT-9045-9047.)
83
No evidence was presented to demonstrate that the slit bag suspension
method would actually work. White, on his own, tried to simulate a delivery
method in which the bottle had been spiked through the bottom of an IV-bag.
He found it did not work because the spike was not long enough to go into the
stopper at the top of the bottle. (27RT-9089-9090.) During trial, Shafer
demonstrated a slit bag propofol drip method, but in doing so, he utilized a
vial that was not the same shape as Exhibit 30. Further, his proposed IV-
delivery system had the spiked IV-line sticking out of the slit in the saline bag,
rather than going directly through the bottom of the bag. (21RT-7372-7374.)
Shafer opined, but did not demonstrate, that based on the dimensions of
Exhibits 29 and 30, they could be utilized in a propofol infusion by spiking
the bottle with a spike at the end of a vented IV-line. (22RT-7514-7515.) The
prosecution never countered the point, raised by White, that such a delivery
method would be very unstable, and with any tugging or movement by the
patient, the unsecured propofol bottle could slip out of the saline bag.
(27RT-9084, 9089.)
A statement made by the prosecutor during his closing argument
implies he was aware of the absurdity of the slit saline bag infusion theory,
and that he was making a desperate attempt to provide the jury with an
alternate mechanism for a propofol drip. He referenced the Exhibit 30 bottle
and stated:
84
It is a stipulated fact - - it is a fact - - that this
label, this hanging tab, was unused and intact on
June 25, 2009. Now, they tend to reapply
themselves. But this is a fact that has been
stipulated by the People and the defense that this
hanging tab was unused and intact on June 25,
2009. . .
(29ART-10001 [emphasis added].)
Testimony by the toxicologist contradicts the prosecutions three-hour
propofol infusion theory. Anderson explained that propofol concentration
levels in the heart blood, hospital blood, femoral blood, and vitreous were not
equal, which indicates propofol had been in the body for a short period of
time. If a person had been on a propofol drip, Anderson would expect to find
propofol in the drip bag. (15RT-4699-4700.) Here, propofol was not detected
in any saline bag found at the scene.
Based on the foregoing discussion, it is clear that the prosecutions
propofol infusion theory was so far-fetched a rational trier of fact could not
have concluded the evidence was sufficient to establish Jackson was on a
propofol drip when he died. In the absence of such a drip, there would have
been no need for appellant to stay in Jacksons bedroom and monitor him once
the short risk period had passed for the single 25-milligram propofol dose that
was slowly administered around 10:40 a.m. Shafer testified the risk period for
such a dose is about five to six minutes, and by ten minutes, there would be
no risk of a complication. (23RT-7816.)
23
Steinberg sparred with defense counsel as to whether appellant told
police he had placed Jackson on a propofol drip on June 25th. Steinberg
interpreted appellants statement to the police, Same dose and drip, as one
in which appellant admitted placing Jackson on a propofol drip. (18RT-5487-
5490.) Read in its entire context, it is evident said statement referred to a dose
and drip appellant had given Jackson on a previous occasion. (11CT-2459-
2460.) Earlier, when appellant described to the police how he had
85
Appellant stated that after slowly administering the 25-milligram dose
of propofol, he stayed and monitored Jackson until he felt comfortable leaving
the room. He checked Jacksons oxygen saturation and heart rate, and
everything appeared to be stable. Appellant explained the effect of the
propofol would be gone in 15 minutes. (11CT-2456-2457, 2481-2483.)
Medical examiner Rogers agreed such a propofol dose would have no effect
after 15 minutes. He also testified that if propofol is slowly administered with
a syringe, the person administering it would be able to see the effects.
(17RT-5221-5224.) It can be reasonably inferred from appellants statement
that he stayed with Jackson for at least 15 minutes, and when he left the
bedroom, Jackson was not at any risk from the propofol injection appellant
had administered to him.
The prosecution presented three expert medical witnesses - Steinberg,
Kamangar, and Shafer - and each testified about various standards of care they
found appellant violated by administering propofol to Jackson at his home.
Each of these experts, however, assumed that on June 25th, Jackson was on
a propofol drip.
23
(18RT-5480-5482, 5485, 5489-5490; 19RT-5785-5786;
administered the lorazepam, he stated, It was IV pushed slowly. When

asked if it had been administered through the IV-drip, appellant responded,
No. The IV drip was with the saline, normal saline for hydration. And lower
down on the - on the cord, there is a port that I can inject a needle. (11CT-
2441-2443 [emphasis added].) This statement supports the defense theory
that Jackson was only on a saline drip on June 25th.
24
There is a difference between the standard of care and standard of
practice. The standard of care encompasses ideal circumstances, and there are
many situations where it is not possible or common to have the highest
possible level with respect to guidelines generated by distinguished
organizations. For instance, when propofol is given outside an operating
room - in an office or clinic - capnography is not used. (29RT 9624-9625.)
86
21RT-7318-7319.) Since the evidence fell short of establishing Jackson was
on a propofol drip on June 25th, most of the experts testimony regarding the
standard of care was rendered meaningless. White acknowledged there were
instances when appellant deviated from the standard of care in his treatment
of Jackson on June 25th, as well as during the preceding two months.
24
(28RT-9306.) Nevertheless, a 25-milligram dose of propofol will have
minimal effects lasting less than 15 minutes, so observing a patient for 20 to
30 minutes after administration of such a dose would be sufficient.
(28RT-9325-9326.) If a single 25-milligram dose of propofol was slowly
administered over three to five minutes, and Jackson had earlier received
doses of lorazepam and midazolam consistent with appellants statement,
monitoring Jackson for 30 minutes would be sufficient. With such a dose
administered by a doctor trying to achieve sleep for his patient, once the time
passed for adverse effects, it would not be unreasonable to leave the patient.
25
On the first night, appellant said he started Jackson on lorazepam
and Versed (midazolam), and gave him a lower dose of propofol at a slower
drip rate. The second night (the night before Jackson died), appellant gave
Jackson lorazepam and midazolam, and for the first time, no propofol.
(11CT-2504.)
87
(28RT-9328-9330.) Accordingly, the alleged deviations of the standard of
care cannot be considered causative factors in Jacksons death.
b. Appellants Act of
Ad mi n i s t e r i n g
Propofol to Jackson
Wa s N o t A
Causative Factor In
Jacksons Death
Appellant stated he had placed Jackson on nightly propofol infusions
for approximately two months, and three nights before Jackson died, he
started to wean Jackson off propofol.
25
(11CT-2461-2462, 2501.) The
prosecution offered no evidence that appellant suffered any adverse reactions
or had any ill effects as a result of receiving the nightly infusions. If it is
assumed appellant was criminally negligent for administering propofol to
Jackson in a non-hospital setting, without meeting the standards of care for
propofol administration, that fact is irrelevant in terms of establishing whether
appellants act of administering propofol to Jackson on June 25th was a
causative factor in Jacksons death.
As illustrated in the preceding section, there was insufficient evidence
to support a finding Jackson was on a propofol drip the day he died. Based
88
on appellants statement, he administered only one small propofol dose to
Jackson on June 25th - 25-milligrams, diluted with lidocaine, slowly infused
over three to five minutes - and its effect would be gone very quickly, within
15 minutes. (11CT-2455-2457.) After administering the propofol, Jackson
fell asleep rather quickly. Appellant stayed with Jackson and monitored him
until he felt comfortable leaving. (11CT-2458, 2481-2483.)
Appellant told police he had previously given Jackson propofol without
any problems. On June 25th, because of the fact he had earlier given Jackson
other medications, he slowly administered a 25-milligram dose of propofol -
about half the size of the bolus dose he had typically given Jackson in the past.
(11CT-2459-2460.)
Propofol works very quickly, within 40 seconds, with its peak effect
typically achieved 90 seconds after a bolus injection. (23RT-7822.) Unlike
other sedatives, the offset time of propofol is just as quick as the onset, and
the patient usually wakes up totally refreshed. (12RT-3741-3742.) Propofol
is not supposed to be rapidly injected or pushed in all at once, because in a
sufficient dose, it can cause apnea. (12RT-3655-3657; 17RT-5219.) The
package insert states that for sedation, propofol should be injected over three
to five minutes. It includes a warning that cardiorespiratory depression is
likely to occur from bolus dosing or rapid increases in infusion rates. The
insert also states slow injection techniques are preferable over rapid bolus
26
The continuum of sedation is as follows: minimal (anxiolysis);
moderate (conscious sedation); deep (aroused by vigorous stimulation); and
general anesthesia (cannot be aroused). (27RT-9035; Exh. GGGG.)
Procedural, conscious and MAC sedation are essentially the same. (27RT-
9038.)
89
administration. For initiation of MAC or conscious sedation, it recommends
slow injection techniques to avoid apnea or hypotension, and an initial dose
of .5-milligrams per kilogram administered over three to five minutes. Such
an initial dose for Jackson would be 31-milligrams. (22RT-7624; 23RT-7808;
27RT-9075; Exh. FFF.)
The experts at trial agreed that 25-milligrams of propofol is a small
dose. Steinberg characterized such a dose as very small, and he would have
expected Jackson to sleep less than ten minutes, if at all. (18RT-5491.) White
testified a 25-milligram dose of propofol for a person of Jacksons size would
be considered minimal sedation.
26
It would result in a mild level of sedation
or sleepiness, without complications. (27RT-9031-9032, 9034, 9037.)
Kamangar agreed 25-milligrams of propofol infused over three to five minutes
is a low dose generally not expected to cause complications. (19RT-5762.)
As pointed out by Steinberg, the monitoring requirements for mild sedation
differ from those necessary for greater levels of sedation. (18RT-5461.)
Cooper testified if an otherwise healthy male the size of Jackson was
given a 25-milligram dose of propofol, with 2.5-milliliters of lidocaine, slowly
infused over three to five minutes, she would not expect it to produce any
90
level of procedural sedation, and any sedative effects would be completely
resolved within seven to ten minutes. (12RT-3625-3627, 3655.) According
to Shafer, a 25-milligram dose of propofol distributed over three to five
minutes would carry a low apnea risk, and for a patient with no other
medications, he would not expect it to occur. The apnea risk period would be
around five to six minutes, and by ten minutes, propofol levels would have
dropped to the point where there is no risk of further complication.
(23RT-7812-7813, 7816.) Based on a model Shafer created where only a 25-
milligram bolus dose of propofol was administered, Shafer concluded Jackson
had to have received more than 25-milligrams of propofol. (21RT-7286-
7292, 7315.)
As discussed in the preceding section, appellant told police he
monitored Jackson for an appropriate period of time after administering the
single dose of propofol. It is reasonable to conclude from appellants
statement that he left the room after the effect of the 25-milligram dose had
dissipated. Therefore appellants act of slowly administering a single 25-
milligram dose of propofol to Jackson around 10:40 a.m. on June 25th cannot
be found to be a causative factor in Jacksons death.
At the request of the defense, Shafer prepared a model depicting the
anticipated femoral blood propofol level for a ten-minute period based on
appellants statement that he administered a 25-milligram dose over three to
27
Adjusting the model to account for a zero to 12 hour x-axis is
reflected in Exhibit EEEE. (27RT-9031.)
91
five minutes. It shows a peak propofol level of one - approximately five
minutes after starting the propofol.
27
(22RT-7622-7623; 27RT-9029-9030;
Exh. EEE.) For a patient with no other medications, the apnea risk would be
low and not expected to occur. The risk period would be around five to six
minutes when propofol brain levels are highest. By ten minutes, propofol
levels would drop to the point where there should be no risk of complication.
(23RT-7812-7813, 7816.)
White found that based on appellants statement, a dangerous situation
would not have been created as a result of the drugs appellant administered to
Jackson on June 25th. Small doses of either midazolam or propofol have very
transient effects. A 25-milligram dose of propofol for a person of Jacksons
size would be considered minimal sedation. It would result in a normal
response to verbal stimulation; not affect the airway, spontaneous ventilation
or cardiovascular function; and the effects would be gone within five to ten
minutes. (27RT-9031-9032, 9034, 9037; 29RT-9630.)
Shafer prepared a model depicting a 25-milligram bolus dose of
propofol rapidly injected over approximately 30 seconds. It shows propofol
blood levels increased up to five and a half or six. White opined that such an
injection could yield levels between four and six depending upon how fast it
92
was injected. (17RT 9072-9074; Exh. GGG.) With a 25-milligram dose of
propofol infused over three to five minutes at 10:40 a.m., and midazolam and
lorazepam levels consistent with appellants statement, a subsequent rapidly
administered bolus dose of 25-milligrams of propofol would be expected to
cause adverse consequences, and in combination with the high concentration
of benzodiazepines, it could be lethal. (27RT-9076-9078; Exh. RRRR.) It is
significant that this model comports with the autopsy propofol femoral blood
level, as well as with the expected lidocaine level. (29RT-9631-9632.)
There was no evidence appellant administered a second bolus dose of
propofol to Jackson on June 25th, and the prosecution never made such a
contention. Instead, the prosecutions case was based on the existence of a
propofol drip. Since there was insufficient evidence to establish Jackson was
on a propofol drip on June 25th, the next question to be answered is whether
appellant is criminally liable for Jacksons death if Jackson had self-injected
propofol outside appellants presence.

c. I t Wa s No t
R e a s o n a b l y
Foreseeable That
Jackson Would
Sel f -Admi ni st er
Propofol Outside
the Presence of
Appellant
Each of the three prosecution medical experts opined that even if
93
Jackson had self-administered propofol and/or lorazepam, appellants actions
were still a direct cause of Jacksons death because of his deviations from the
standards of care. They specifically pointed to the following reasons:
appellant left Jackson unmonitored and alone, he left drugs in a location
where they were not locked up and where Jackson had easy access to them,
Jackson was a person who appeared to have a substance abuse problem, he
told appellant he liked to push propofol himself, and it was foreseeable that
Jackson would self-administer the medications. (18RT-5455-5456, 5545,
5550, 5620-5622; 19RT-5795; 20RT-7071-7072; 21RT-7372, 7380-7381;
22RT-7416-7617; 23RT-7872 .)
Appellant disagrees self-administration by Jackson was foreseeable.
Jackson never told appellant he had self-injected propofol when he was alone.
During his police interview, appellant said Jackson told him he had used
propofol in Germany and several other places. The detective asked if the
propofol had been administered by a doctor or by Jackson himself.
(11CT-2463.) Appellant responded:
He never told me that he administered it himself, but he
had said to me that the doctors allowed him to infuse it himself.
And I refused him that opportunity. And he asked me, Why
would you - - why dont you want me to push it? I love to push
it. You know, it makes me feel medicine is great. I said,
Well, if Im going to give you an agent that is going to put you
to sleep immediately and be so quick to act, I dont want you
ever to infuse such a substance when Im present. Ill do that.
So sorry about the other doctors who have done this. I would
not.
94
(11CT-2463-2464.)
Lee testified that Jackson expressed the need for Diprivan (propofol)
to help him sleep. (24RT-8145, 8149.) Jackson had said, Doctors have told
me it is safe. I just need to be monitored. Lee told Jackson no doctor would
administer Diprivan at his house. Jackson responded, No. I just need
somebody to come here, and I will be safe if it was monitored, as long as I am
being monitored. (24RT-8152.) He subsequently reiterated the point and
stated, I will be okay. I only need someone to monitor me with the
equipment while I sleep. (24RT-8175.) These statements demonstrate
Jackson understood the necessity of being monitored while on propofol. The
fact Jackson had appellant monitor him while he was on propofol infusions
further demonstrates his knowledge that monitoring was necessary. Based on
said knowledge, it was not reasonably foreseeable Jackson would self-
administer propofol outside the presence of appellant or another medical
practitioner.
The record fails to support expert opinion that appellant left drugs in
a place easily accessible to Jackson, so that self-administration would have
been a foreseeable risk. Appellant stated that on June 25th, he used two
different syringes. He explained that typically after using items, he put them
away in his bags, then put his bags into a cupboard. He did so because
Jackson did not want him to leave anything around. Smith found appellants
95
bags in a high cupboard above a closet next to Jacksons bedroom, exactly
where appellant indicated they would be. (11CT-2541-2542; 17RT-5134.)
The defense contended Jackson rapidly injected a 25-milligram bolus
dose of propofol. There was no evidence appellant left an empty syringe, a
syringe filled with propofol, and/or a vial of propofol in a location easily
accessible to Jackson. As evidenced by Jacksons conversations with
appellant and Lee, Jackson was very familiar with propofol, in that other
doctors had administered it to him. (11CT-2463-2464, 2471; 24RT-8153.)
It is conceivable Jackson had obtained a secondary source for the drug,
especially because he had received nightly propofol infusions from appellant
for the previous two months, and appellant had Sunday nights off.
Kamangar and Shafer recognized Jackson likely had a substance abuse
problem. (18RT-5621-5622; 23RT-7872.) Addiction expert Waldman
testified Jackson had a dependence on Demerol, and he was highly
suspicious Jackson was addicted to the drug. (26RT-8763-8764.) Kleins
records reflect that from mid-March through June 9th, Jackson frequently
received high doses of Demerol - usually between 200 and 300 milligrams
during a single office visit. (26RT-8740-8752.) In June, Jackson received the
following total doses of Demerol: 200-milligrams on the 1st, 4th and 10th,
and 100-milligrams on the 16th and 22nd. (26RT-8752-8753, 8791-8792;
Exhs. 226, UUU.) Based on the symptoms Jackson displayed at the June 19th
96
rehearsal, it is likely he was then going through Demerol withdrawal.
(26RT-8723, 8726.) A logical explanation for Jacksons inability to sleep on
June 25th, after taking a Valium and receiving two IV-doses of both
midazolam and lorazepam, is that he was continuing to go through Demerol
withdrawal.
The evidence failed to establish appellant was aware Jackson had a
substance abuse problem with regard to Demerol or any other drug. As noted
by Waldman, denial of an addiction and hiding it from others is very common.
Addicts commonly engage in doctor shopping by obtaining prescription
medications from a variety of pharmacies and doctors, and they
compartmentalize by separating different aspects of their lives. (26RT-8719-
8720.) This appears to be exactly what Jackson did. During searches of
Jacksons residence, numerous medications prescribed by appellant, Klein,
and Metzger were recovered. (See e.g. 14RT-4312-4315.) Appellant told
police he had learned from Ortega and Dileo that Jackson was going to
Kleins office several times a week, but Jackson never shared that fact with
him. (11CT-2523.) Although appellant acknowledged he was aware Jackson
had a lot of IV-sites on his body, and veins that were sclerotic, Jackson told
appellant Lee was providing him with a special IV-cocktail for energy.
(11CT-2466.) Appellant was also aware Jackson had a history of receiving
propofol infusions from multiple other doctors, and had frequently used
97
propofol when touring. (11CT-2463.) He was also familiar with the fact
Jackson became dehydrated after exercising and dancing, so it was likely
Jackson had a history of receiving saline infusions. (11CT-2439.) The fact
Jackson had received various infusions on a somewhat frequent basis is a
logical explanation for the numerous IV-sites on his body.
The defense theory assumed that in addition to Jackson rapidly self-
injecting 25-milligrams of propofol on June 25th, earlier that morning he had
taken the equivalent of eight 2-milligram lorazepam pills when he was outside
appellants presence. The pills could have been taken individually at various
times or in any combination, and with the two IV lorazepam injections
appellant said he had given, it would have resulted in the autopsy lorazepam
femoral blood level. (27RT-9061-9062.) The fact that there was a small
amount of lorazepam found in Jacksons stomach is consistent with oral
administration. If all of the lorazepam had been administered intravenously,
there should not have been any free lorazepam in the stomach. (27RT-9063-
9064, 9065.)
The IV-stand had wheels, and there was no evidence Jackson was
unable to walk around when he was on a saline IV-drip. As noted by
appellant, no one, including appellant, was allowed to enter Jacksons private
quarters. (11CT-2437-2438.) A lorazepam bottle, prescribed to Jackson by
appellant and filled on April 2nd, was found empty in Jacksons private
98
bathroom. The directions on the bottle indicate one tablet should be taken by
mouth at night as needed for insomnia. (16RT-4899; Exh. 187.) When police
searched Carolwood on June 25th, both the fireplace and television in
Jacksons private bedroom were on. (16RT-4875-4876; Exh. LL.) This
evidence demonstrates that Jackson had ample opportunity to ingest
lorazepam tablets when he was alone in his private quarters on June 25th.
It would be unreasonable to conclude appellant was criminally
negligent for prescribing medication to Jackson, and allowing him access to
said medication with proper directions. Generally when physicians prescribe
medication to a patient, they do not maintain possession of the medication for
dispensation. Rather, the patient is typically allowed to keep possession of the
prescription for self-administration.
Based on the foregoing discussion, it was not reasonably foreseeable
Jackson would self-administer eight 2-milligram lorazepam pills outside the
presence of appellant, and/or thereafter rapidly self-inject a bolus dose of
propofol when he was not being monitored by appellant or another medical
professional. Therefore if Jackson had self-administered drugs outside of
appellants presence, said act must be deemed an unforeseeable and
extraordinary occurrence, relieving appellant of criminal liability for Jacksons
death.
99
2. The Prosecution Did Not
Establish That Appellant Failed
to Perform His Legal Duty to
Treat and Care for Jackson
and/or That Such Failure
Caused the Death or Was a
Substantial Factor in Causing
Jacksons Death
With regard to the second theory of involuntary manslaughter, the
prosecutor argued appellant abandoned Jackson. (29A-RT-10024.) During
his rebuttal argument, he explained appellant was a medical doctor who had
assumed care of Jackson, and appellant therefore had a legal duty of care to
monitor and ensure the safety of Jackson. The prosecutor argued appellant
administered propofol to Jackson, and if appellant had not abandoned his
patient, if there had been monitoring equipment with alarms, and if appellant
knew how to effectively resuscitate a patient, Jackson would not have died.
(29A-RT-10074.)
The problem with this theory is that the evidence failed to establish
Jackson was on a propofol drip on June 25th, and the prosecutions experts
each based their opinions on the assumption Jackson was on such an infusion.
In the absence of Jackson being on a propofol drip, appellant had no reason
to stay in the bedroom and monitor Jackson once the effect of the slowly
injected 25-milligram single dose of propofol was out of Jacksons system.
Appellant monitored Jackson for an appropriate period of time after giving
him the single injection at 10:40 a.m., and then he walked out of the bedroom
100
to use the bathroom. (11CT-2481-2483.)
The evidence is consistent with a scenario in which Jackson quickly
self-injected the lethal bolus dose of propofol while appellant was outside the
bedroom. Based on the toxicology results, it appears the rapid injection led
to cardiac arrest and a quick death. Therefore none of the deviations from the
standard of care, as testified to by the prosecutions experts, are pertinent to
appellants care of Jackson on June 25th. The doses of medication appellant
administered to Jackson that day should not have harmed him. It is likely that
Jacksons heightened insomnia on June 25th was exacerbated by his
surreptitious Demerol addiction and the resultant acute withdrawal syndrome
therefrom. Jacksons last Demerol injection was on June 22nd, less than 72
hours before his death, which could have been a peak period for the
occurrence of withdrawal symptoms. (26RT-8756; Exh. 226.)
Appellant is a highly trained medical doctor, with specialties in
cardiology and internal medicine. (11CT-2428.) In his realm of expertise,
saving lives and resuscitating patients was not a rare occurrence. Based on
appellants training and experience, when he found Jackson not breathing, he
acted quickly to assess Jackson and try to resuscitate him. (11CT-2484-2485.)
If appellant had called 911 as soon as he found Jackson not breathing, and the
paramedics had arrived within five minutes, it would not have changed the
end result because at the point appellant walked back into the bedroom,
101
Jackson was already dead after having suffered a cardiac arrest.
F. Conclusion
As illustrated above, the prosecution failed to prove Jackson was on a
propofol drip on the day he died, and it did not prove the elements of
involuntary manslaughter on either of the two theories presented to the jury.
As a result, appellants conviction violates his constitutional right to due
process, and reversal is required. (U.S. Const., 14th Amend.; Jackson v.
Virginia, supra, 443 U.S. 307, 319; In re Winship, supra, 397 U.S. 358, 364.)
102
II.
THE TRIAL COURT ERRED BY DENYING THE
DEFENSE POST-VERDICT MOTION TO TEST THE
RESIDUE IN THE EXHIBIT 30 PROPOFOL BOTTLE
BECAUSE THE RESULTS OF THE PROPOSED
TESTING COULD REFUTE THE PROSECUTIONS
FINAL THEORY OFFERED DURING REBUTTAL AND
COULD CONSTITUTE NEWLY DISCOVERED
EXCULPATORY EVIDENCE

A. Introduction
Eleven days after the jury reached its verdict, the defense filed a motion
requesting permission to test the residue contained in the Exhibit 30 100-
milliliter propofol bottle. (11CT-2662-2666.) The court denied the motion,
finding no justification for the request. (30RT-11410.) As demonstrated
below, the courts ruling was an abuse of discretion because the chemical
composition of the residue did not become relevant until the rebuttal case, and
results of the proposed testing would potentially constitute newly discovered
exculpatory evidence. As a result of the error, a conditional reversal of the
judgment is required.
B. Relevant Procedural History
1. The Written Motion
On November 18, 2011, the defense filed a motion requesting
permission to test the chemical concentration of the residue contained in
Exhibit 30. (11CT-2662-2666.) It contended that as a result of Shafers
103
rebuttal testimony, the chemical composition of the residue had become
relevant to confirm or negate the accuracy of Shafers proposed scenario, and
if the residue did not contain lidocaine, it would refute the prosecutions
infusion theory first presented during rebuttal. (11CT-2665.)
2. The Hearing & the Courts
Ruling
Defense counsel stated that Shafer, during his rebuttal testimony.
opined that appellant may have taken some propofol out of the 100-milliliter
propofol bottle, replaced it with lidocaine, then administered an infusion from
said bottle. Counsel contended if appellant had done so, the residue in the
Exhibit 30 bottle would contain lidocaine in addition to propofol. He argued
testing of the residue could be material to confirm or negate the last
hypothesis that was brought up for the first time in rebuttal. (30RT-11402-
11404.)
Although the condition of the residue had not changed, counsel noted
Exhibit 30 had previously been referred to as an empty bottle, and he had not
noticed any solution therein until it first became relevant during Shafers
rebuttal testimony. The court found the defense had all the necessary
information during trial, yet prior to resting, it had not requested testing of the
residue, and it had now come up with a new approach. Defense counsel
represented the defense had no idea the prosecution was going to make such
104
a contention until it was presented during rebuttal, and it now wanted the
residue tested to confirm or deny the prosecutions new theory. (30RT-11404-
11406.)
The prosecutor opposed the motion. He argued appellant had been
convicted, there was no merit to the defense motion, and the defense should
not at that point be allowed to pursue another theory. Defense counsel
responded by essentially arguing the prosecution had sandbagged the defense
by presenting a new theory through its rebuttal witness. He argued, [Shafer]
could have absolutely demonstrated the accuracy of what he said by doing the
analysis. Since the prosecution had come up with a new theory, the defense
merely wanted an opportunity to confirm or negate whether it was supported
by toxicology findings. (30RT-11407-11409.)
The court noted the defense had this evidence all along, and it
questioned what had changed between cross-examination of Shafer on rebuttal
and the filing of the motion. (30RT-11409.) Defense counsel responded that
the theory was not presented until a few minutes before the evidentiary portion
of the case concluded, and he did not think the court would have entertained
such a motion at that time. It was not until defense expert White heard about
Shafers new theory, a day or two after Shafers rebuttal testimony, that the
defense became cognizant of the need to test the residue. White did not think
Shafer had presented a viable contention on rebuttal, and he thought there was
105
residue in the bottle that should be tested. Defense counsel indicated he had
not understood the issue at that time. (30RT-11409-11410.)
The court ruled on the motion as follows:
. . . as far as Im concerned you are not involved in fishing.
You are involved in foraging.
We have trials based upon the evidence that is presented.
This is not surprising evidence. The exhibit has been around
since the inception of the case. The defense has made motions
for splits, for analyses of various items of evidence and exhibits,
and did not do so in this case.
There is no justification for the court to respond
favorably to this type of extraordinary motion. The motion is
denied.
(30RT-11410.)
3. The Defense Filed a Second
Motion to Test the Exhibit 30
Residue
The prosecution filed a sentencing memorandum in which it requested
$101,821,871.65 in victim restitution. (12CT-2674-2684.) A restitution
hearing was set for January 23, 2012. (30RT-11754.) The defense filed a
discovery motion seeking permission to test the Exhibit 30 residue in an
attempt to establish comparative negligence for purposes of restitution.
(1SCT-73-84.) The prosecution subsequently withdrew its restitution request,
and based thereon, the court declined to consider the motion. (1SCT-85-86;
1ART-4.)
106
C. The Prosecution Contended That Appellant
Administered a Propofol Infusion to Jackson
From the Exhibit 30 Bottle
1. Exhibit 30 is a Significant Piece
of Evidence
In his opening statement, the prosecutor stated that through the medical
experts testimony, the jury would learn the significance of the 100-milliliter
propofol bottle found inside an empty saline bag. (8RT-2435.) During the
prosecutions case-in-chief, Shafer presented a three-hour propofol infusion
theory he claimed was consistent with the evidence. (21RT-7318-7329.) He
contended appellant set up a propofol infusion by placing the Exhibit 30 bottle
upside down inside the Exhibit 29 cut saline bag; the bag was used to support
the bottle; the rubber stopper on the bottle was punctured with a spike on the
end of a vented IV-infusion line; the line ran out of the slit in the bag and was
connected to the Y-port by attaching a needle to the end; and, the propofol
dripped through the line into the IV-catheter site just below Jacksons left
knee. (21RT-7342-7343, 7362-7364, 7372-7375; 22RT-7515, 7524-7525,
7562.)
Defense expert White testified Shafer had suggested, in his report, that
propofol and lidocaine could be mixed together for an infusion. White stated
he had never done so, because lidocaine is used to reduce the burning
sensation of a propofol injection, and therefore it should be given just prior
to initiation of an infusion, in a bolus injection, either by itself, or with
107
propofol, through the IV. (29RT-9618-9619.)
White opined that if there had been a three-hour propofol infusion
starting at 9:00 a.m. as modeled by Shafer, the lidocaine would have been
infused just prior to that time. He noted Shafer had given two scenarios, one
of which entailed adding 10-ccs of lidocaine to a 100-milliliter propofol vial.
White did not think it was possible to do so, because a full 100-milliliter glass
vial would not hold an additional 10-ccs of liquid. He thought Shafer then
assumed appellant had mixed lidocaine and propofol in a one-to-one ratio.
White pointed out Shafer, in his report, stated appellant drew up 50-
milligrams of propofol and 50-milligrams of lidocaine to fill a 10-cc syringe.
White explained if the entire dose was administered prior to starting a
propofol infusion, due to the short half-life of lidocaine, there would not be
any lidocaine present in the blood at noon or at the time of Jacksons death,
which would not comport with the autopsy finding of a .84 lidocaine femoral
blood concentration. (29RT-9619-9620.)
White could not conceive of any reason to give a patient a bolus dose
of lidocaine during an infusion when the patient is sleeping. If lidocaine had
been given to Jackson with the slow propofol bolus around 10:40 a.m., as
stated by appellant, there would have been a transient increase in the lidocaine
level. If a second rapid bolus had been given, the expected lidocaine
concentration would be fairly close to what was found in the autopsy femoral
108
blood. This scenario would be consistent with the defense theory that Jackson
quicky self-administered the second bolus dose which led to his death.
(29RT-9620-9622.)
2. During Rebuttal the Prosecution
Presented a New Theory
Regarding the Contents of
Exhibit 30
During rebuttal, Shafer testified his modeling and simulations took
lidocaine into account. He represented the autopsy lidocaine levels were
completely consistent with his hypothesis, because his simulations involved
lidocaine going in simultaneously with propofol, based upon appellants
statement Jackson was very concerned about pain on injection. Shafer stated,
Its very simple to simply remove some propofol from the glass vial, and
replace it with lidocaine. (29RT-9646-9647.) In Shafers initial report, he
discussed a simulation in which 10-milliliters of lidocaine were mixed with
100-milliliters of propofol. Because said simulation does not result in a high
lidocaine level, he noted in his report that the ten-to-one ratio was probably
wrong, and he suggested appellant had probably not used the standard dilution
for anesthesiologists, and instead diluted propofol with lidocaine one-to-one.
Shafer testified that although in his report he gave an example of mixing five-
milligrams of propofol with five-milligrams of lidocaine, he had actually been
referring to a higher dose, and such a one-to-one mixture would have
109
produced the lidocaine concentration measured in the autopsy femoral blood.
(29RT-9656-9658.)
3. During Closing Argument the
Prosecutor Contended the
Evidence Supported Shafers
Propofol Infusion Theory
The prosecutor, during his closing argument, reminded the jury the
Exhibit 30 vial was inside the cut saline bag when it was recovered by Fleak,
and Alvarez testified appellant told him to remove that bag from the IV-stand.
(29ART-9986.) He emphasized that Shafer, who just received a lifetime
award in his field, concluded that based on the autopsy blood levels, the most
likely scenario was that respiratory depression occurred, Jackson stopped
breathing, and while the infusion continued, Jackson died, which explained
the femoral blood propofol concentration of 2.6. (29ART-10000.) The
prosecutor argued the evidence supported Shafers infusion theory, and the
only reasonable interpretation of the evidence was the infusion had been
implemented by hanging the Exhibit 30 vial upside down inside the Exhibit
29 slit bag. (29ART-10001-10003.)
D. The Trial Court Abused Its Discretion By
Denying the Defense Motion to Test the
Exhibit 30 Residue
There are only two plausible ways propofol could have been
administered when appellant was outside Jacksons presence. Appellant could
110
have started an IV propofol drip and then left Jackson alone for a period of
time, or someone else could have administered the propofol without
appellants knowledge when he was away from Jacksons bedroom. There
was no evidence anyone other than appellant and Jackson were in Jacksons
upstairs quarters during the morning hours of June 25th, and thus Jackson was
the only other person who could have administered the propofol. Even Shafer
could not rule out the possibility Jackson had been left alone in the room and
self-administered the lethal dose of propofol. (22RT-7516.)
If there had been sufficient evidence to establish that on June 25th,
appellant had placed Jackson on a propofol drip and left the room, causation
would be established. On the other hand, if Jackson had self-administered the
propofol, causation is not clear cut. As discussed in Argument I-E-1, ante,
incorporated by reference herein, there was an absence of substantial evidence
to support the prosecutions theory that Jackson was on a propofol drip on the
day he died.
White opined that contrary to Shafers testimony, the prosecutions
100-milliliter infusion theory is not reasonable because of the following: it
does not correspond with appellants police statement, it does not match the
urine propofol level at autopsy, it is not supported by physical evidence at the
scene, and, lidocaine, which would have been used at the beginning of the
infusion, would have resulted in a near zero level at noon rather than the .84
28
Although defense counsel contended that if the prosecutions last
theory was valid, Exhibit 30 should contain 10 percent lidocaine, the evidence
never established what amount of lidocaine would be necessary to reach the
autopsy lidocaine femoral blood level if mixed with some of the propofol in
the 100-milliliter vial. Since Shafer testified he contemplated a one-to-one
mixture of propofol and lidocaine, it appears that in order to support his
theory, the vial would need to contain equal parts of propofol and lidocaine.
Regardless, the presence of any amount of lidocaine in the vial would tend to
support the prosecutions theory.
111
femoral blood level found at autopsy. (27RT-9083, 9105; 29RT-9618-9619,
9626; Exh. SSSS.) Whites proposed scenario, however, reconciles with all
of the above. (27RT-9103-9106; Exh. VVVV.)
As previously discussed, the prosecutions infusion theory
contemplates a propofol drip initiated directly from the Exhibit 30 bottle,
placed inside the Exhibit 29 slit saline bag, and hung from the IV-stand.
Since Shafer suggested, during his rebuttal testimony, that some propofol had
been removed from the bottle and replaced with lidocaine, which would be
consistent with the lidocaine levels found at autopsy, a chemical analysis of
the residue in Exhibit 30 would demonstrate the truth or falsity of his final
theory. The presence of lidocaine in the residue would clearly substantiate
Shafers theory.
28
Conversely, if the residue contains no lidocaine, and only
propofol, it would refute Shafers final contention that was used to prove a
propofol infusion.
The prosecution did not even suggest, until its final rebuttal witness,
that its propofol infusion theory encompassed removal of a portion of
112
propofol from the Exhibit 30 bottle, and the addition of lidocaine thereto. Its
11th-hour tactic left the defense in a position where it had no real opportunity
to present any effective defense to this novel theory. As a result, the jury was
left with the impression the rebuttal theory was a viable one, when in fact, it
was entirely unsubstantiated. There was no evidence the Exhibit 30 vial
contained any lidocaine, and the prosecution did not offer any simulation or
other evidence to demonstrate what ratio of propofol to lidocaine would be
necessary in order to produce the lidocaine blood level found at autopsy.
The prosecutions case was founded on the existence of a propofol
infusion, and therefore its new theory offered during rebuttal addressed a
critical portion of its case. If forensic testing revealed Exhibit 30 residue does
not contain lidocaine, it would constitute exculpatory evidence. Since the
importance of the chemical composition of the residue did not become known
until the end of trial, and it constitutes a critical piece of evidence that is
potentially exculpatory, the trial court abused its discretion by denying the
defense motion for testing the Exhibit 30 residue.
E. Appellants Federal Constitutional Rights to
Due Process, a Fair Trial, and to Present a
Defense Were Violated by the Trial Courts
Denial of Appellants Motion to Test the
Residue in Exhibit 30
A defendant has a state and federal constitutional right to due process
and a fair trial. (U. S. Const., 5th, 6th, 14th Amends., Cal. Const., art. I,
113
15, 16 & 17; Crane v. Kentucky (1986) 476 U.S. 683, 690; Chambers v.
Mississippi (1973) 410 U.S. 284, 302.) In this regard, the due process clauses
of the Fifth and Fourteenth Amendments guarantee criminal defendants a fair
opportunity to present [a] defense. (Ake v. Oklahoma (1985) 470 U.S. 68,
76.) This fair opportunity includes access to the raw materials integral to
the building of an effective defense. (Id. at p. 77.) In other words,
encompassed within the due process right to present a defense is the right to
access evidence necessary for the defense. When the state makes a particular
issue critical to the case, it may not preclude defendant from the tools needed
to contest that issue. (Id. at p. 80, 83.)
The disclosure of evidence favorable to an accused is required by a
defendants federal constitutional right to due process. (United States v.
Bagley (1985) 473 U.S. 667, 676; Brady v. Maryland (1963) 373 U.S. 83, 87.)
If evidence helps the defendant, or harms the prosecution, it is considered
favorable. (Bagley, supra, at p. 676; In re Miranda (2008) 43 Cal.4th 541,
575.) A defendant is denied due process when procedural constraints exclude
potentially exculpatory evidence crucial to the defense. (Chambers v.
Mississippi, supra, 410 U.S. at pp. 294, 297-298, 302.)
The prosecutorss obligation to disclose exculpatory evidence is limited
to information that is both material and exculpatory. (Brady v. Maryland,
supra, 373 U.S. at p. 87.) Evidence is considered material only if there is a
114
reasonable probability its disclosure would make a difference in the outcome
of the trial. (In re Miranda, supra, 43 Cal.4th 541, 575; City of Los Angeles
v. Superior Court (2002) 29 Cal.4th 1, 7.) A prosecutors duty to disclose
material exculpatory evidence continues even after a trial has ended. (Imbler
v. Pachtman (1976) 424 U.S. 409, 427, fn. 25.)
When the exculpatory value of evidence or information in the
possession of a prosecutor is not readily apparent, disclosure is required only
if the defense makes a specific request for it. (In re Steele (2004) 32 Cal.4th
682, 701.) Here, appellant made such a request after it became apparent there
was residue in Exhibit 30, the analysis of which would tend to negate or
corroborate the validity of the prosecutions theory relating to the infusion of
propofol mixed with lidocaine.
Appellant submits the trial courts erroneous denial of his motion to
test the Exhibit 30 residue resulted in denying him access to evidence
necessary for the defense, and effectively barred him from making an effective
challenge to the prosecutions case in a motion for a new trial based on newly
discovered evidence. As such, it violated his constitutional right to due
process and a fair trial, and to present a defense. Further, it prevented him
from obtaining and presenting potentially crucial exculpatory evidence in
violation of the federal Constitution. (See Davis v. Alaska (1974) 415 U.S.
308, 318; Chambers v. Mississippi, supra, 410 U.S. at pp. 294-295;
115
Washington v. Texas (1967) 388 U.S. 14, 23.)
F. Appellant Was Prejudiced By The Trial
Courts Ruling & Reversal Is Required
Since the trial courts denial of the defense motion resulted in
implicating appellants federal constitutional rights, appellants conviction
must be reversed unless the error is determined to be harmless beyond a
reasonable doubt. (Chapman v. California (1966) 386 U.S. 18, 24.) Here the
error cannot be found harmless. The prosecutions final rebuttal witness
presented an unsubstantiated new theory that went to the crux of the
prosecutions case regarding its infusion theory - that some propofol had been
removed from the Exhibit 30 vial and replaced with lidocaine. Forensic
testing of the residue in Exhibit 30 could reveal the absence of lidocaine,
which would invalidate the prosecutions final infusion theory, and constitute
newly discovered evidence sufficient to support a motion for a new trial.
The prosecution withdrew its request for over $101,000,000 in
restitution after the defense filed a restitution discovery motion in which it
again requested permission to have the Exhibit 30 residue tested. Said
withdrawal strongly suggests the prosecution may have known their Exhibit
30 theory could have been blown apart, and appellants conviction ultimately
reversed, if the Exhibit 30 residue was submitted for forensic analysis.
Due to the fact the erroneous denial of appellants motion was not
116
harmless beyond a reasonable doubt, the judgment must be reversed, and the
matter remanded with directions to the trial court to order testing of the
Exhibit 30 residue. The defense should thereafter be given the opportunity to
bring a motion for a new trial based on the test results, and if prejudice is
demonstrated, a new trial should be ordered. (People v. Coyer (1983) 142
Cal.App.3d 839, 844-845; Pen. Code 1260.)
117
III.
APPELLANT WAS DENIED HIS CONSTITUTIONAL
RIGHT TO THE EFFECTIVE ASSISTANCE OF
COUNSEL BY THE FAILURE OF HIS TRIAL
COUNSEL J. MICHAEL FLANAGAN TO
ADEQUATELY CROSS-EXAMINE SHAFER DURING
REBUTTAL AND/OR BY HIS DEFENSE TEAMS
FAILURE TO MAKE A TIMELY AND/OR ADEQUATE
MOTION FOR FORENSIC TESTING OF THE RESIDUE
IN THE EXHIBIT 30 PROPOFOL BOTTLE
A. Introduction
In the preceding argument, incorporated by reference herein, appellant
presented his position that the trial court erred by denying the defense post-
verdict motion for testing of the residue in the Exhibit 30 propofol vial. If this
court disagrees on the basis the motion was untimely, and/or inadequate,
because it failed to demonstrate the necessity of testing the residue for
appellants defense or a motion for a new trial, then appellant contends he was
denied his constitutional right to effective assistance of trial counsel.
The failure of the defense team to make a timely and/or adequate
motion to test the Exhibit 30 residue was striking, because the prosecutions
propofol infusion theory was central to its case, and the absence of lidocaine
in Exhibit 30 would disprove the theory that was presented through Shafers
testimony. Additionally, and/or alternatively, appellant contends he was
denied his constitutional right to effective assistance of counsel by the failure
of his attorney, J. Michael Flanagan, to adequately cross-examine Shafer as
118
to the new theory, presented during rebuttal, that a portion of the propofol in
Exhibit 30 had been removed and replaced with lidocaine. Flanagans failure
to effectively cross-examine Shafer and/or the failure of the defense team to
make a timely or adequate motion to test the Exhibit 30 residue cannot be
justified by trial strategy or tactics. Appellants conviction must be reversed
because he was prejudiced by said ineffectiveness of his trial counsel.
B. A Defendant in a Criminal Case Has a Federal
and State Constitutional Right to Effective
Assistance of Counsel
A criminal defendant has a federal and state constitutional right to the
effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S.
668; In re Marquez (1992) 1 Cal.4th 584; People v. Pope (1979) 23 Cal.3d
412, 422.) This right is guaranteed by the Sixth Amendment of the federal
Constitution (Powell v. Alabama (1932) 287 U.S. 45), and applies to the states
by virtue of the Fourteenth Amendment (Cuyler v. Sullivan (1980) 446 U.S.
335). It is also guaranteed by the California Constitution. (Art. I, 15;
People v. Nation (1980) 26 Cal.3d 169, 178.)
To establish ineffective assistance of counsel, appellant must
demonstrate: (1) counsels representation was deficient in falling below an
objective standard of reasonableness under prevailing professional norms, and
(2) counsels deficient representation subjected appellant to prejudice, i.e.,
there is a reasonable probability that, but for counsels failings, the result
119
would have been more favorable to appellant. (Strickland v. Washington,
supra, 466 U.S. at p. 689; In re Cordero (1988) 46 Cal.3d 161, 180.)
The United States Supreme Court has held defense counsel have the
duty to safeguard the rights of their client, and to competently and zealously
present their defense. (Johnson v. Zerbst (1938) 304 U.S. 458.) Tactical
decisions made by trial counsel are entitled to great deference. (People v. Holt
(1997) 15 Cal.4th 619, 703.) Deference, however, must never be used to
insulate counsels performance from meaningful scrutiny. (In re Cordero,
supra, 46 Cal.3d at p. 180.) [T]he defendant must affirmatively show that
the omissions of defense counsel involved a critical issue, and that the
omissions cannot be explained on the basis of any knowledgeable choice of
tactics. (People v. Lanphear (1980) 26 Cal.3d 814, 828-829.)
Ignorance by counsel cannot be considered strategic or tactical.
(People v. McCary (1985) 166 Cal.App.3d 1, 8.) When trial counsel fails to
acquire facts necessary to a crucial defense or to follow the facts already in his
possession or to develop facts to which his attention is called, . . . , his failure
to raise a defense or defenses which could have been established by making
the aforestated requisite efforts cannot be justified by reference to trial strategy
or tactics. (People v. Corona (1978) 80 Cal.App.3d 684, 706, citing In re
Saunders (1970) 2 Cal.3d 1033, 1042, 1049.)
120
C. Standard of Review
[B]oth the performance and prejudice components of the
ineffectiveness inquiry are mixed questions of law and fact that are reviewed
independently. (People v. Jones (2010) 186 Cal.App.4th 216, 235-236,
quoting Strickland v. Washington, supra, 466 U.S. at p. 698; accord, In re
Cordero, supra, 46 Cal.3d 161, 181.)
D. Relevant Procedural History
Appellants defense team was comprised of three attorneys. Although
Edward Chernoff was lead counsel, it was clear the role of attorney Flanagan
focused on the medical/scientific evidence. During the prosecutions case-in-
chief, Flanagan cross-examined most of the witnesses who provided medical
and scientific testimony: Cooper, Nguyen, Anderson, Rogers, Steinberg, and
Kamangar. He also conducted direct-examination of defense expert White.
(27RT-8891.) Although for an undisclosed reason, Flanagan did not conduct
cross-examination of Shafer during the case-in-chief, he did cross-examine
Shafer during rebuttal. (29RT-9656.)
The evidentiary portion of trial spanned five weeks, and 49 witnesses
testified. On November 1, 2011, the prosecution presented its rebuttal case,
and closing arguments took place on November 3rd. (10CT-2368-2369;
11CT-2617.) The jury commenced its deliberations on November 4th.
(11CT-2638.) During its second day of deliberations, on November 7th, the
121
jury reached its verdict finding appellant guilty of involuntary manslaughter
as charged. (11CT-2640, 2646.)
As discussed in Arguments I and II, ante, the crux of the prosecutions
case was its theory that Jackson was on a propofol infusion when he died.
During its case-in-chief, the prosecution presented its theory that the infusion
had been administered directly from the Exhibit 30 propofol bottle, after it had
been suspended upside down inside the Exhibit 29 slit saline IV-bag. In
rebuttal, the prosecution presented a novel theory regarding the contents of
Exhibit 30. Shafer, the prosecutions main expert, retook the stand and
asserted the model/theory he adopted took lidocaine levels into account. He
represented it was simple to remove some propofol from the glass bottle and
replace it with lidocaine, and therefore his hypothesis was completely
consistent with autopsy lidocaine levels. (29RT-9646-9647.)
Flanagan subsequently cross-examined Shafer, and asked him whether,
in his initial report, he indicated that five-milliliters of lidocaine injected
between the hours of 10:00 and 12:00 would correspond with the lidocaine
levels found in the femoral blood at autopsy. (29RT-9656.) Shafer replied,
No, and then Flanagan asked what was stated in his report. Shafer
responded:
The report suggests initially a mixing of . . . 10 milliliters
of lidocaine with 100 milliliters of propofol and performs a
simulation. And the simulation does not give us a high level.
And then I suggested the 10 to 1 ratio was probably wrong.
122
. . . , if I may actually read from my report, the most likely
explanation is that Murray did not use the more or less standard
dilutions. This being standard for anesthesiologists. But rather
diluted lidocaine with propofol 1 to 1, i.e., meaning as an
example, mixed 5 mls. of lidocaine with 5 mls. of propofol.
But I am just showing that as the ratio. I am not saying
thats what the simulation was. That is just explaining what 1 to
1 means.
(29RT-9656-9657.)
Flanagan asked Shafer to read that portion of his report. Shafer read
the following:
The most likely explanation is that Murray did not use
the more or less standard dilution but rather diluted lidocaine
with propofol 1 to 1, i.e., mixed 5 mls. of lidocaine with 5 mls.
of propofol. That would have produced almost exactly the
lidocaine concentration measure in the femoral blood at
autopsy.
(20RT-9658.)
Immediately Flanagan moved on to another subject. He never asked
Shafer whether the residue in Exhibit 30 had been tested for the presence of
lidocaine. In fact, Flanagan did not cross-examine Shafer at all about the
contention Shafer had presented for the first time just moments before, that
some propofol had been removed from the Exhibit 30 vial and replaced with
lidocaine. Instead, Flanagan asked Shafer about the lidocaine concentration
assertions made in Shafers initial report. Such inquiry was, however,
essentially irrelevant, because the report discussed a two-hour time period,
29
Shafer did not delineate any particular amount of propofol that
would need to be removed from the vial and replaced with lidocaine. He
merely testified, Its very simple to simply remove some propofol from the
glass vial and replace it with lidocaine. (29RT-9647.)
123
rather than the three-hour time period encompassed in the propofol infusion
theory adopted by Shafer at trial.
Eleven days after the jurys verdict, the defense filed a written motion
requesting permission to test the Exhibit 30 residue. (11CT-2662-2666.) On
November 21, 2011, a hearing on the motion was held. (11CT-2673;
30RT-11401 [a portion of said proceeding is set forth in Argument II-B-2,
ante].) Flanagan represented that Shafer, in his rebuttal testimony, contended
appellant may have taken some propofol out of the Exhibit 30 100-milliliter
bottle. (30RT-11402-11403.) He argued:
. . . He [appellant] would have to take about ten ccs of propofol
out and put ten ccs of lidocaine in the bottle to do the
infusion.
29
I know why he made this contention and it is because if
he stuck with his original five milliliters of lidocaine, that
would work if it goes in between 10:00 and 11:00. The
problem is between 10:00 and 11:00, you cant get a hundred
milliliters of propofol in without it being up to five micrograms
per milliliter, the anesthetic dose.
So in order to be able to give enough time to get the
propofol in that would get to the 2.6 level, which is the level
where Jackson died, and to have him at that level for a
sufficient - - a long period of time such that the propofol would
not metabolize below that level, he needed three hours. So he
has to put the propofol in over a three-hour period of time.
124
Well, in putting it in over the three-hour period of time,
you have got to start with lidocaine, the anti-burn that Mr.
Jackson referred to. But if you only use five milliliters, it gives
you basically a zero level of lidocaine at time of autopsy.
At the time of autopsy, Mr. Jackson had a point eight
four micrograms per milliliter. So in order to get to the point
eight four, he has got to start with ten milliliters of lidocaine
three hours in advance.
Well, you wouldnt put 10 milliliters of lidocaine in a
syringe. You would have to - - because in order to desensitize
the vein, most doctors use one or two milliliters or they might
mix five milliliters of lidocaine with five milliliters of propofol
for an induction dose which the doctor originally suspected.
That would be if you were doing the two-hour infusion. But on
the three-hour infusion, you need ten milliliters of lidocaine.
So he hypothesized that ten milliliters of lidocaine was
put in that glass vial which contained a hundred milliliters of
propofol. But we knew that you cant put ten milliliters in that
vial because there is no room for it.
But if he did take out ten milliliters of propofol, then you
could put in five [sic] milliliters of lidocaine for purposes of
desensitizing the vein. We feel that in the event that he did that,
an analysis of what appears to be a residue would reveal a 90
percent propofol with ten percent lidocaine.
And therefore, I think this evidence could be material to
confirm or negate the last hypothesis that was brought up for
the first time in rebuttal.
(30RT-11403-11404.)
The court inquired whether the condition of the Exhibit 30 residue had
always been the same. Flanagan replied, Apparently, it has. He noted
Exhibit 30 had been referred to as an empty bottle in the coroners
30
This description appears in the exhibit list form, typically filled out
by the courtroom clerk, that was sent to the exhibit room with the exhibits.
125
documentation and in Shafers report. Flanagan had not noticed any solution
in the vial until it became relevant during Shafers rebuttal testimony.
(30RT-11405.) Fleak, however, had testified that when she recovered Exhibit
30, it contained some liquid at the very bottom. (14RT-4334-4337.)
The court asked why the issue was not raised during Shafers
testimony. Flanagan replied:
I did not think of it, and the fact is I really hadnt paid
too much attention to the bottle. I just assumed we had an
empty bottle there, and it wasnt too pertinent until Dr. Shafer
came up with the theory that part of that propofol had been
taken out of that bottle and lidocaine put in that bottle. That
was the first time . . . that theory was ever put forth . . .
(30RT-11405.)
The court found the defense had time to think about it, and had come
up with a different approach. It stated the defense had the information at trial,
but did not request to have the exhibit examined before both sides rested.
Flanagan argued it was not really pertinent until Shafer actually made the
contention during rebuttal. The court noted Exhibit 30 had been characterized
as a 100-milliliter propofol bottle with small amount of liquid.
30
(30RT-11405-11407.)
Flanagan contended the motion was not an attempt by the defense to
pursue a new theory. Instead, it sought to confirm or negate the prosecutions
126
novel theory presented through its last rebuttal witness. He represented the
defense had no idea the prosecution was pursing the new theory until Shafers
rebuttal testimony. (30RT-11408.)
The court asked what had changed between rebuttal cross-examination
of Shafer and filing of the motion, and why the motion had not been filed
during trial, prior to submission. (30RT-11409.) Flanagan responded:
Well, it wasnt until Dr. Shafer testified on rebuttal a few
minutes before the whole case was over. I dont think the court
would have allowed us to entertain a motion. Lets stop and
lets analyze the contents of that bottle since Dr. Shafer just
testified to this.
(30RT-11409.)
The court pointed out the defense had not made such a request. (30RT-
11409.) Flanagan responded:
No, I didnt ask you. And you know what. I wasnt
really certain of it until it was suggested to me by Dr. White.
When Dr. White heard about what Dr. Shafer testified to, Dr.
White informed me, well, he doesnt think that that is a viable
solution or contention by Dr. Shafer. And that Dr. White
thought there was residue in the bottle and we should test it.
Dr. White suggested that to me by e-mail a day or two
later. I, quite frankly, didnt understand it, but now we do.
(30RT-11409-11410 [emphasis added].)
127
E. Appellant Was Denied His Constitutional
Right to Effective Assistance of Counsel By
Flanagans Inadequate Cross-Examination of
Shafer During Rebuttal and By His Defense
Teams Failure to Make a Timely and/or
Adequate Motion to Test the Exhibit 30
Residue
As illustrated above, Flanagan failed to cross-examine Shafer about his
new theory that some propofol in Exhibit 30 had been removed and replaced
with lidocaine. It is puzzling he did not do so, because the prosecutions case
centered around its attempt to prove Jackson was on a propofol drip when he
died, and it contended Exhibit 30 had been the direct source of the infusion.
Since Flanagan did not believe the contents of Exhibit 30 had previously been
tested (11CT-2665), he could have attacked the validity of the prosecutions
new theory by cross-examining Shafer on that point. Also, he could have
asked Shafer what particular amount of propofol would need to be removed
and replaced with lidocaine, in order to reach the autopsy lidocaine femoral
blood concentration level.
The defense team neglected to make a motion to test the Exhibit 30
residue before the cause was submitted to the jury, and instead, it waited
almost two weeks after the verdict before filing the motion. (11CT-2662-
2666.) The record shows no justifiable basis for the delay. It would have
been very simple for the defense to make an oral motion to test the residue as
soon as Shafer concluded his rebuttal testimony. Flanagans statement - that
128
he did not think the court would have entertained such a motion a few minutes
before both sides rested - is not a valid reason for failing to make a motion at
that time.
In responding to the courts inquiry about the delay, Flanagan stated
he wasnt really certain of it, until White informed him by e-mail, a day or
two after Shafers testimony, that he did not think Shafers rebuttal theory was
a viable one, and he thought there was residue in the bottle and it should be
tested. (30RT-11409-11410.) Because closing arguments took place two
days after Shafers rebuttal testimony, the defense team likely would have
received Whites e-mail prior to the commencement of closing arguments, and
could have made an oral motion at that time. Certainly the defense could have
brought such a motion prior to the commencement of deliberations the next
day. Flanagan, however, gave no explanation for the failure of the defense to
make the motion prior to the submission of the case to the jury. His statement,
I, quite frankly, didnt understand it, but now we do (30RT-11410), fails to
justify his delay in bringing the motion. Flanagans entire statement
demonstrates the ineffectiveness of the defense team, because they were
placed on notice, by their expert, of the importance of testing the Exhibit 30
residue, yet they failed to act upon the information in a timely manner. Since
Flanagan did not understand the issue, despite the fact he had cross-examined
Shafer on rebuttal and conducted cross-examination of the other medical
129
experts during trial, due to the time parameters he should have immediately
contacted defense expert White and acquired and/or developed facts in his
possession that could have been crucial to appellants defense.
The record also contains no justification for the defense not filing their
motion until 11 days after the jury reached its verdict. The motion was an
extremely brief one, consisting only of a Notice of Motion, and a two-
paragraph supporting declaration of Flanagan that states.
1. ... I am an attorney of record for Conrad Murray...
2. That as a result of testimony given by Dr. Steven
Shafer during rebuttal ... relating to his opinion regarding the
probable method used to infuse propofol over a three hour
period, the chemical makeup of any residues in the bottle
designated as Peoples exhibit No. 30 has become relevant to
confirm or negate the accuracy of Dr. Shafers proposed
scenario. Said bottle has heretofore been thought to be empty
but may in fact contain a testable residue. I do not believe that
the contents of said bottle have been analyzed for chemical drug
content.
I therefore request that Pacific Toxicology Laboratories
be allowed to inspect and analyze the content of said bottle.
(11CT-2665.)
The motion did not discuss or even identify the portion of Shafers
testimony upon which it was based. It did not include any argument or
authority, and did not state that the testing was being sought for purposes of
a motion for a new trial, or for any other purpose, such as for a writ.
Flanagans declaration does not even mention lidocaine. Although the Notice
130
of Motion states that appellant was requesting testing of Exhibit 30 for
chemical concentration of propofol and lidocaine, it also states it was
requesting testing of the 100 m.l. bottle heretofore described as an empty
bottle . . . Strangely, it does not mention that the exhibit contains any
residue. (11CT-2662.)
During the hearing, Flanagan argued that in order to reach the .84
lidocaine femoral blood level, it would have been necessary to administer ten-
milliliters of lidocaine before starting a three-hour propofol infusion. (30RT-
11403.) He did not, however, offer any data or even a model to support said
assertion. Flanagan mentioned Shafer had earlier contemplated adding ten-
milliliters of lidocaine to a 100-milliliter vial, but that would not work because
the vial would already be full of propofol. It is evident that when Shafer
wrote his report, he was considering a two-hour infusion, rather than the
three-hour infusion he adopted as his hypothesis at trial. Although Shafer
contended on rebuttal that some propofol could be removed from the vial and
replaced with lidocaine, he never stated any particular quantity that would
render his hypothesis consistent with the autopsy lidocaine femoral blood
concentration level. If the defense had a simulation, or other evidence
demonstrating that 10-milliliters of lidocaine mixed with 90-milliliters of
propofol would yield the .84 lidocaine concentration, they should have
included it in the motion to support their request for testing the Exhibit 30
131
residue. Based on Shafers testimony that after rejecting the 110-milliliter
solution, he contemplated a one-to-one mixture, it is possible that he was
asserting that 50-milliliters of propofol should have been removed from the
Exhibit 30 vial, and replaced with 50-milliliters of lidocaine.
As illustrated in Argument II, ante, there was good cause for the court
to grant the motion for testing the Exhibit 30 residue. A reasonably competent
defense attorney, acting as a conscientious advocate for his client, would have
realized the importance of the content of said residue during Shafers direct-
examination rebuttal testimony, and would have throughly cross-examined
Shafer about his new theory. Further, upon receiving an e-mail from its expert
about the necessity of testing the residue, a reasonably competent defense
attorney would have immediately contacted the expert if he did not understand
the theory and importance of testing the residue, and would have made an
effort to acquire and/or develop facts to support a defense to Shafers new
theory. Certainly a reasonably competent defense attorney would not have
waited another two weeks before filing a motion to test the residue, and would
have filed a motion that included points and authorities, and argument in
support of his motion.
Claims of ineffective assistance of counsel are often denied based upon
the conclusion counsel may have had a tactical purpose for his or her act or
omission. Where the record reveals no tactical reason for not taking the
132
appropriate action, the issue of ineffective assistance is cognizable on direct
appeal. (People v. Jones (1994) 24 Cal.App.4th 1780, 1783, fn. 5; cf. People
v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Here there can be no
tactical purpose or satisfactory explanation for Flanagans failure to cross-
examine Shafer on rebuttal about his new theory, and/or to subsequently
confer with the defense expert once said expert notified him about the
necessity of testing the residue, and for not otherwise taking steps to
understand his experts contention that addressed a critical component of the
prosecutions case. There can also be no tactical explanation for the failure
of the defense team to make, prior to submission of the case, an oral motion
to test the residue. Finally, there can be no tactical reason for failing to file a
timely written motion that included points and authorities, and an argument
and explanation supporting the request to test the residue. The failure of the
defense team to zealously represent appellants interests and protect his
constitutional rights constitutes performance falling below the standard of
reasonable competence expected of criminal defense attorneys. (In re Wilson
(1992) 3 Cal.4th 945, 955-956.)
To prevail on a claim of ineffective assistance of counsel, The
defendant must show that there is a reasonable probability that, but for
counsels unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
133
confidence in the outcome. (Strickland v. Washington, supra, 466 U.S. at p.
694; accord, People v. Benavides (2005) 33 Cal.4th 69, 93.) Here, if Flanagan
had acted competently and in appellants best interests, by cross-examining
Shafer about his new theory, he likely would have brought out the fact the
residue had not previously been tested, and been able to illustrate that Shafers
new theory was based on pure speculation. As a result, appellant might have
been acquitted. The jury deliberated for approximately eight hours over the
course of two days. (11CT-2638-2639, 2645-2646.) This is an indication that
it was not an open and shut case. (People v. Rucker (1980) 26 Cal.3d 368,
391 [nine hours of deliberations was long]; People v. Woodard (1979) 23
Cal.3d 329, 341 [six hours was long].)
As set forth in Argument I, ante, there was an absence of substantial
evidence to support the prosecutions infusion theory, and if Flanagan had
properly cross-examined Shafer about his unsubstantiated new theory, it may
have been the difference between a conviction and an acquittal. Additionally,
if the defense had made a motion to test the residue prior to the matter being
submitted to the jury, it is reasonably probable the court would have granted
the motion. Certainly if the defense had brought a timely written motion that
included argument and supporting authority, illustrating why the proposed
testing was necessary to support a motion for a new trial and/or a writ, the
court likely would have granted the motion. A reviewing court would not
134
then find the trial court properly denied the motion on the basis it was
untimely. Due to the fact appellant was denied his constitutional right to
effective counsel in regard to a matter that could lead to exculpatory evidence,
and ultimately an acquittal or reversal, appellants conviction must be
reversed.
31
Unless otherwise indicated, all further statutory references are to the
Evidence Code.
135
IV.
APPELLANTS CONSTITUTIONAL RIGHT TO DUE
PROCESS AND PRESENT A DEFENSE WERE
VIOLATED BY THE TRIAL COURTS EXCLUSION OF
CRITICAL DEFENSE EVIDENCE REGARDING
JACKSONS MEDICAL HISTORY
A. Introduction
The court granted the prosecutions pretrial motion to exclude
testimony from dermatologist Dr. Arnold Klein, his nurse, and his personal
assistant. It found testimony from said witnesses would raise third party
culpability issues without a sufficient showing from the defense, and pursuant
to Evidence Code section 352, divergent issues outweighed its probative
value.
31
As demonstrated below, the courts ruling was erroneous, because the
proffered testimony of said witnesses was extremely relevant to the defense
case, it would not raise third party culpability issues, and the courts concern
about unrelated issues could have been properly addressed by an order
limiting the scope of allowable testimony. Reversal of appellants conviction
is required, because the error impacted appellants defense, and left him
without a mechanism to challenge the veracity of Kleins medical records that
were admitted into evidence for the eight month period prior to Jacksons
death.
136
Pursuant to a subpoena duces tecum, Jacksons medical records from
Klein were produced for the period of October 23, 2008, through June 22,
2009. Said production occurred after the trial court found the records were
relevant and not privileged. (7CT-1495A-1496; 3RT-M3-M4.)
On August 25, 2011, the prosecution filed a motion in limine regarding
proposed defense witnesses. (10CT-2238-2245.) In part, it sought exclusion
and/or limitation of testimony from Jacksons prior healthcare providers
absent an offer of proof, because none of said witnesses had been present or
cared for Jackson on the day he died. (10CT-2240.)
With regard to Klein, his nurse, and assistant, the motion states:
Arnold Klein
. . . is a dermatologist who treated Michael Jackson with botox,
restylane fillers, and other cosmetic procedures. Dr. Klein
evidently saw Michael Jackson five times in June 2009, with the
last appointment being June 22, 2009. According to the
defense, they have not interviewed this witness.
Ellen Brunn
According to the defense, Ms. Brunn worked for Dr.
Klein. . . . they have not interviewed this witness.
Jason Pfiffer
The defense has interviewed Mr. Pfiffer, who was
evidently a personal assistant to Dr. Klein and also worked in
Dr. Kleins medical office.
(10CT-2241.)
137
The defense filed a written opposition. (10CT-2253-2266.) It included
the following offer of proof:
Dr. Arnold Klein was Mr. Jacksons physician for a
number of years. Dr. Klein administered frequent intramuscular
injections of Demerol to Mr. Jackson for no valid medical
purpose. Dr. Kleins medical records show that during just the
three months prior to his death, Mr. Jackson visited Dr. Klein
23 times, and each time received one or more intramuscular
injections of Demerol and midazolam. In some weeks, the total
amount of Demerol provided to Michael Jackson exceeded 900
milligrams. Due to Dr. Kleins unconscionable actions, Mr.
Jackson became physiologically and psychologically dependent
on Demerol.
Certainly, Dr. Klein [sic] treatment of Michael Jackson
is highly material and relevant to the defense. As we previously
notified the People, the Defense experts will testify that one of
the severe side effects of Demerol addiction and withdrawal is
the absolute inability to sleep. The evidence shows that Michael
Jackson made these trips to Dr. Kleins office in secret, and that
neither Dr. Murray nor the individuals who Michael Jackson
worked with in the This Is It show knew the extent of his
visits to Dr. Klein or the precise nature of his treatments.
The People disagree that Michael Jackson was addicted
to Demerol and have hired experts in addiction recovery.
According to discovery provided by the People, these experts
will claim that Michael Jackson was not addicted to Demerol
and only visited Dr. Klein because he liked Demerol. This is
likely to be a major source of contention at trial.

Ms. Brunn worked for Dr. Klein. According to the
medical records produced by Dr. Klein, Ms. Brunn was the
nurse who physically injected Mr. Jackson with Demerol and
midazolam.
Mr. Pfeiffer worked as Dr. Kleins office manager. It is
believed he was present during Mr. Jacksons frequent visits to
Dr. Kleins medical office. He was aware of the Demerol
injections that were being provided to Michael Jackson. On one
138
occasion, Mr. Pfeiffer witnessed Mr. Jackson too drugged up
and disoriented to stand on his own. On one other occasion,
Dr. Klein asked Mr. Pfeiffer to prepare a doctors note with
fabricated test results to allow Mr. Jackson to get out of
attending a court appearance. Mr. Pfeiffer refused.
Mr. Pfeiffer once approached Dr. Klein to discuss his
concern about the amount of Demerol that was being provided
to Michael Jackson. Dr. Klein did not share his concern.
Two weeks prior to Michael Jacksons death, Michael
Jackson called Mr. Pfeiffer and asked him to contact Dr. Klein
for him. He told Mr. Pfeiffer that he wanted Dr. Klein to get
him [sic] anesthesiologist to administer Propofol. Mr. Pfeiffer
directed this request to Dr. Klein.
(10CT-2257-2258.)
During argument on the motion, the prosecutor asserted it would be
improper for the defense to call Klein as a witness, because it would
essentially [be] a backdoor way of trying to get in third party culpability
evidence, and the medical evidence and science do not support shifting
blame to Klein. He contended that if the intended purpose of presenting said
evidence was to show Jackson received Demerol, the records reflect the dates
and amounts of Demerol given, and the prosecution was not disputing what
was shown therein. (5RT-CC23-CC24.)
Defense counsel argued Kleins testimony was relevant independent of
the medical records. The defense was not trying to shift blame, and was only
interested in Jacksons Demerol addiction. Counsel pointed out that Kleins
medical records do not reflect why Jackson was receiving an antiquated
139
powerful pain killer in the course of dermatology treatments. (5RT-CC24-
CC25.)
The court granted the motion to exclude Kleins testimony. It stated,
I do not think it is relevant in the overall scheme of things in view of the
Peoples acknowledgment that they will not be objecting to the medical
records themselves. It found calling Klein would raise the issue and specter
of so-called third party culpability where one is led down a path of somehow
ascribing to Dr. Klein some sort of criminal culpability for the death of Mr.
Jackson. (5RT-CC25.) The court further explained its ruling:
I do not believe that the defense has made a sufficient
showing under People v. Hall and its progeny for the relevance
of such testimony in view of the nonobjection to medical
records.
So first of all, I find that calling Doctor Klein is
irrelevant under the circumstances. And more importantly,
under Evidence Code section 352, the distraction and
divergence of the issues substantially outweigh any probative
value.
So the court is granting that motion to exclude the
proffered testimony of Doctor Klein in view of the fact that
there will be no issue as to medical records.
(5RT-CC25-CC26 [emphasis added].)
Defense counsel represented that since Brunn and Pfeiffer worked for
Klein, they could testify as to the methodology and practice in giving Jackson
Demerol. He argued there was no third party culpability in regard to those
140
witnesses. Counsel stated, Pfeiffer provides information about Michael
Jackson in June, two weeks before his death, calling and asking for an
anesthesiologist specifically to provide propofol, which was a question the
defense would ask Klein if they were permitted to call him. (5RT-CC26.)
The prosecutor contended testimony by Brunn and Pfeiffer would raise
the issue of third party culpability as to Klein. He noted the defense offer of
proof was that Brunns initials are reflected in the medical records, but since
the prosecution was not disputing the records, it had no relevance. (5RT-
CC26-27.) The prosecutor argued:
Jason Pfeiffer is not even a medical personnel. He was
a partner of some sort to Doctor Klein. He is also involved in
complex civil litigation back and forth with Doctor Klein. It
has no relevance to anything.
This would truly create a sideshow and for the same
exact reasons and then some. ...
(5RT-CC27.)
The defense argued exclusion of the three witnesses would prevent it
from showing how the decision was made to give Demerol, why varying
doses were given, and whether it was done at the request of Jackson and/or
Klein. Further, the exclusion of Pfeiffer would prevent the defense from
establishing that despite the prosecutions allegation that appellant was giving
all of the propofol to Jackson, during the two weeks prior to his death,
Jackson was looking for another source of propofol. (5RT- CC27-CC28.)
141
The court excluded the testimony of Brunn and Pfeiffer, and explained:
Same ruling. I do not believe that that testimony is
relevant to the critical issues in this case. Third party culpability
need not be raised only with regard to a particular individual.
It can be, arise as to others.
I do not believe that the testimony of Ms. Brunn or Mr.
Pfeiffer is relevant to the issues in this case. And most
importantly, under Evidence Code section 352, the very real
potential and reality of distraction into completely divergent
issues with all of the misleading factors that that may entail
substantially outweighs the probative value.
(5RT-CC28-CC29.)
C. General Rules Regarding the Admissibility of
Evidence
[R]elevancy is the first rule of the admissibility of evidence. . . .
(Traxler v. Thompson (1970) 4 Cal.App.3d 278, 286.) Section 351 provides
that all relevant evidence is admissible. Relevant evidence is defined in
section 210 as evidence having any tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of the action.
In the context of criminal cases, the general test of relevancy is whether the
evidence tends logically, naturally, and by reasonable inference to establish
any material fact sought to be proved. (People v. Garceau (1993) 6 Cal.4th
140, 177; People v. Kelly (1967) 66 Cal.2d 232, 239.)
Even relevant evidence must be excluded if it contravenes policies
limiting its admission. Section 352 provides:
142
The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of
time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.
As noted by the California Supreme Court in People v. Edwards (1991)
54 Cal.3d 787, 817, In general, the trial court is vested with wide discretion
in determining relevance and in weighing the prejudicial effect of proffered
evidence against its probative value. Such discretion should favor the
defendant in cases of doubt because in comparing prejudicial impact with
probative value the balance is particularly delicate and critical when what is
at stake is a criminal defendants liberty. (People v. DeLarco (1983) 142
Cal.App.3d 294, 306 [internal quotation marks and citations omitted].)
On appeal, the trial courts ruling regarding the admissibility of
evidence is reviewed for an abuse of discretion. (People v. Hamilton (2009)
45 Cal.4th 863, 940; People v. Cudjo (1993) 6 Cal.4th 585, 609.)
Excluding the Testimony of Klein, Brunn and
Pfeiffer, Because It Did Not Give Rise to a
Third Party Culpability Issue, It Was
Relevant to Disputed Issues, and its Probative
Value Substantially Outweighed Any Potential
Prejudicial Impact
A defendant may rely upon the theory that a third party committed the
charged offense. (People v. Edelbacher (1989) 47 Cal.3d 983, 1017; People
v. Hall (1986) 41 Cal.3d 826, 833.) Evidence of the culpability of a third
143
party must link the third person either directly or circumstantially to the actual
perpetration of the crime. (People v. Bradford (1997) 15 Cal.4th 1229, 1325.)
Contrary to the courts finding, the testimony of Klein, Brunn and
Pfeiffer, did not give rise to a third party culpability issue. The defense did
not argue or contend it was offering the testimony of the three witnesses to
show that Klein or anyone in his office was responsible for Jacksons death.
Rather, it sought to establish through the testimony of said witnesses that
Jackson was receiving frequent and significant doses of Demerol in the weeks
and months prior to his death, and was addicted to Demerol. Although the
defense also wanted to establish Jackson attempted to obtain propofol from
Klein two weeks before his death, it did not contend Klein or anyone from his
office administered propofol to Jackson on June 25th, or at any other time.
The defense theory was that Jackson self-injected the lethal propofol dose.
Jacksons dependence on, and likely addiction to Demerol, was an
important part of appellants defense. Earlier in the proceedings defense
counsel explained:
... Michael Jackson could not sleep because of the Demerol.
Doctor Murray did not know that. But Arnold Klein did.
Michael Jackson needed sleep because he was withdrawing and
addicted, both addicted and withdrawing from Demerol. Thats
important to our defense. In fact, its absolutely vital.
At the period of time that he self-ingested the Demerol
[sic], he was going through the pain of withdrawal. Its very
important there was no meperidine because that shows the
withdrawal. Absolutely, that is important to our defense.
144
If the prosecution doesnt think Demerol has any affect,
then they, theyve already, they already have experts to say that
he wasnt addicted to it. They could argue that. But thats our
defense. Thats what we intend to present. Its important to our
defense because of it. Thats what makes Demerol important.
(5RT-CC10-CC11.)
The reason Jackson received nightly propofol infusions until three
nights before his death was because he suffered from chronic insomnia, which
was likely caused by his dependence on, and possible addiction to Demerol.
(26RT-8715.) The byproduct of Demerol is a neuroexcitatory phenomenon,
which makes a person more hyper, excitable, and stimulated. Demerol is a
narcotic that can cause insomnia. (19RT-5737-5738.)
Dr. Waldman, the defense addiction specialist, testified Demerol is an
opioid, and withdrawal from opioids tend to result in over-activity of some
bodily functions. The most significant withdrawal problems include anxiety,
restlessness, and insomnia. Waldman has seen sleep disturbance in every
patient in opioid withdrawal, lasting from weeks to months. (26RT- 8715,
8754.)
Appellant told police that in the early morning hours of June 25th, he
gave Jackson a Valium pill, and over the course of the next five and a half
hours, he administered two IV-doses of lorazepam and two IV-doses of
midazolam. (11CT-2439-2450.) At 10:40 a.m., Jackson was still wide awake,
having slept less than 15 minutes since trying to go to sleep before 2:00 a.m.
145
(11CT-2447, 2506.) If Jackson had been going through Demerol withdrawal
on June 25th, as the defense contended, it would provide a reasonable
explanation for the fact Jackson remained wide awake after receiving four
doses of IV benzodiazepine sedatives.
Waldman reviewed Kleins medical records for the period October 23,
2008, through June 16, 2009. (26RT-8733; Exh. UUU.) They reflect Jackson
received frequent Botox and Restylane dermatological treatments, and
typically received injections of Demerol and midazolam during the treatments.
(26RT-8744.) Waldman testified that in the spring of 2009, Jackson was
receiving large and increasing doses of Demerol, which was consistent with
developing a tolerance to the smaller doses. (26RT-8742.)
According to Waldman, 50-milligrams is the starting recommended
Demerol dose for a person who has not recently taken any opioids. Even if
it was assumed Demerol was necessary for Botox or Restylane administration,
200-milligrams would be a large dose. (26RT-8739.) Kamangar agreed that
a Demerol dose of 200-milligrams is a significant one. (19RT-5736.) From
April through June, Jackson was receiving total doses ranging from 100 to
300 milligrams per visit. For the three day period - May 4th to 6th - Jackson
received 900-milligrams of Demerol. (26RT-8751; Exh. UUU.)
In June, Jackson received the following doses of Demerol: 200-
milligrams on June 1st, 4th and 10th, and 100-milligrams on June 16th and
146
22nd. (26RT-8752-8753; Exhs. 226, UUU.) Waldman testified if a person
addicted to Demerol was suffering from withdrawal symptoms on June 21st,
a shot of Demerol on June 22nd would help relieve the symptoms. On
subsequent days, if that individual did not receive any more Demerol,
withdrawal symptoms would be expected to recur. (26RT8756.) Waldman
opined that at least by May 4th, Jackson was dependent upon, and possibly
addicted to Demerol. Six weeks of very frequent high Demerol doses would
result in opioid dependence in anyone, and Waldman characterized Jacksons
use as very high. (26RT-8748-8749.) He was highly suspicious Jackson
was addicted to Demerol. (26RT-8763-8764.) Since Jackson was dependent
on Demerol, and received his last Demerol injection on June 22nd, Waldman
opined Jackson would have experienced withdrawal symptoms within a day.
(26RT-8786.)
The evidence established that in June of 2009, Jackson was under
tremendous pressure preparing for his upcoming tour. Phillips testified that
pressure on the entire production team rose as the tour opening date
approached. (24RT-8255.) Not only was Jackson the headliner of the This
Is It tour, he was also contractually responsible for all of the tours pre-
production costs. (24RT-8287-8288.)
As discussed in Argument I, ante, the defense contended Jackson self-
injected the fatal dose of propofol. The reason it sought to prove Jackson was
147
going through Demerol withdrawal on June 25th was to show his state of
mind - specifically, that his resulting physiological and psychological state,
along with the pressure he was under from preparing for the upcoming tour,
rendered him so desperate for sleep that he would take the extraordinary
action of self-administering propofol when he was outside the presence of
appellant. Therefore the testimony of Klein, his nurse, and personal assistant,
each of whom had personal contact with Jackson during the course of his
treatments, was extremely relevant to the defense, and had strong probative
value. (See People v. Cooley (1962) 211 Cal.App.2d 173, 201 [an inference
as to victims conduct can be drawn from victims state of mind].)
The fact the trial court previously found that Kleins medical records
pertaining to Jackson were relevant and subject to disclosure, renders it
puzzling that the court subsequently excluded the testimony of Klein, Brunn
and Pfeiffer. (3RT-M5.) The prosecutor informed the court it was not
disputing the content of Kleins medical records (5RT-CC23, CC27), and the
records were subsequently admitted into evidence without objection. (29RT-
9739, 9839; Exh. UUU.)
Contrary to the courts conclusion, the probative value of the proffered
testimony was not substantially outweighed by its prejudicial impact. The
court stated it was excluding Kleins testimony in view of the fact there will
be no issue as to medical records. (5RT-CC26.) The courts reasoning was
148
illogical. By admitting Kleins medical records for Jackson, while excluding
the testimony of Klein, Pfeiffer, and Brunn, the defense could not directly
challenge the veracity of said records, ascertain their completeness, or even
gain a complete and meaningful interpretation of them. The defense was
unable to examine Klein and his staff about Jacksons purported Demerol
addiction, the reasons his office had administered such frequent and high
doses to Jackson for dermatological treatments, how Jackson reacted after
receiving varying doses of the drug, and if, in May and/or June, Klein was
attempting to wean Jackson off of Demerol in an effort to end his dependency
or addiction to the drug. It was also unable to prove whether Jackson was
addicted to Demerol and going through withdrawal when he died, because
experts in the case articulated they could not reach conclusions based only on
reviewing Kleins records. (See section F, post.)
In excluding the testimony of Klein, Pfeiffer and Brunn, the court
expressed its concern about distraction into completely divergent issues.
(5RT-CC25, CC28.) The court however, never identified what those issues
were. During argument, the prosecutor brought out the fact Klein and Pfeiffer
were embattled in complex civil litigation against each other. (5RT-CC27.)
The courts concern about divergent issues could have been addressed by
an order limiting the scope of the witnessess testimony, so that evidence of
the pending lawsuit and other irrelevant evidence would be excluded. Instead
149
of issuing such an order, the court completely excluded the testimony of the
three witnesses, which resulted in denying appellant his constitutional rights
to due process and present a defense.
While the prosecution is afforded protection under section 352 from the
use of prejudicial evidence with little probative value, the purposed prejudice
to the prosecution cannot be based on mere speculation and conjecture.
(People v. Wright (1985) 39 Cal.3d 576, 585.) Evidence that is relevant to
the prime theory of the defense cannot be excluded in wholesale fashion
merely because the trial would be simpler without it. (People v. McDonald
(1984) 37 Cal.3d 351, 372, overruled on another point in People v. Mendoza
(2000) 23 Cal.4th 896.) Here, as previously discussed, the probative value of
the excluded evidence was strong, and its prejudicial impact, that was never
identified by the court, was minimal at best.
The conclusion that the testimony in question was admissible over
objection is supported by the long recognized principle of California law that
trial judges in criminal cases should give a defendant the benefit of any
reasonable doubt when passing on the admissibility of evidence as well as in
determining its weight. (People v. Murphy (1963) 59 Cal.2d 818, 829.) As
illustrated above, the court clearly erred by the precluding the defense from
calling Klein, Brunn and Pfeiffer as witnesses.
150
E. The Erroneous Exclusion of the Testimony of
Klein, Brunn and Pfeiffer Violated Appellants
Federal and State Constitutional Right to
Present a Defense, and to Due Process and a
Fair Trial
A defendant has a state and federal constitutional right to due process
and a fair trial. (U. S. Const., 6th, 14th Amends., Cal. Const., art. I, 15, 16
& 17.) The Sixth and Fourteenth Amendments also guarantee a criminal
defendant in a state trial, the opportunity to present a full and complete
defense, including the introduction of defense evidence. (Crane v. Kentucky,
supra, 476 U.S. 683, 690; Chambers v. Mississippi, supra, 410 U.S. 284,
302.) Few rights are more fundamental than that of an accused to present
witnesses in his own defense. (Taylor v. Illinois (1988) 484 U.S. 400, 408.)
Appellant submits the trial courts erroneous ruling excluding the
testimony of Klein, Pfeiffer and Brunn, barred appellant from making an
effective challenge to the prosecutions case, and prevented him from
presenting a defense in violation of the federal Constitution. (See Davis v.
Alaska, supra, 415 U.S. 308, 318; Chambers v. Mississippi, supra, 410 U.S.
at pp. 294-295; Washington v. Texas, supra, 388 U.S. 14, 23.)
Reversal of Appellants Conviction
Due to the fact the error in question involves a violation of federal
constitutional dimension, the applicable standard of review is that set forth in
151
Chapman v. California, supra, 386 U.S. 18. Reversal is required unless the
error is found to be harmless beyond a reasonable doubt. (Id. at p. 24.)
Here the courts error cannot be found to be harmless. The fact
Jackson frequently went to see Klein, and received large doses of Demerol at
Kleins office, clearly impacted his behavior. Williams used to drive Jackson
to Kleins office and wait outside. He testified it became a very regular
occurrence when Jackson went to see Klein. Sometimes when Jackson left
Kleins office, he would speak much slower than normal. (9RT-2874.)
Muhammad accompanied Jackson to Kleins office on many occasions.
He testified that although the frequency of such visits fluctuated, there were
times Jackson saw Klein on a daily basis, and other times when Jackson would
not go for a couple of days. Muhammad recalled one visit when Jackson had
to be brought downstairs from Kleins office by one of the staff members.
(9RT-2935.)
Gongaware attended a creative meeting at Carolwood, and recalled
Jackson arrived late after coming from an appointment with Klein. Jacksons
behavior was a bit off, he was slurring his speech slightly, and he was a bit
slower than usual. (8RT-2573-2574.)
Waldmans testimony about Jacksons dependence on Demerol and
Kleins treatment of Jackson came from a copy of the presumed medical
records from Klein. (26RT-8765-8766.) He did not know whether Kleins
152
records for Jackson were complete. Waldman explained, Ive never said I
trust the records. The records are inadequate, but I can look at the records and
interpret them. (26RT-8795.)
Kamangar reviewed Kleins records for April, May and June. During
cross-examination, Kamangar was asked if he had formed an opinion as to
whether or not Mr. Jackson had a Demerol problem. Kamangar responded,
I cant really answer that question based on purely the records I have
available from Dr. Klein. (19RT-5735.)
Shafers testimony regarding Jacksons Demerol use was based solely
on reviewing Kleins medical records. Although Shafer concluded Jackson
liked Demerol, he found the records alone were insufficient to allow him to
conclude Jackson was an addict. Shafer was aware that no Demerol or
normeperidine was detected in Jacksons body at the time of death, and he
opined Demerol did not contribute to Jacksons death. (23RT-7848-7849,
7867-7868.)
If Klein, Pfeiffer, or Brunn had testified, and their testimony revealed
Jackson was addicted to Demerol, and perhaps going through Demerol
withdrawal on June 25th, Shafer may have reached a different conclusion
regarding whether Demerol played a role in Jacksons death. It is likely
Waldman and/or Kamangars conclusions and opinions would also have been
impacted if the court had not excluded the testimony of Klein and his staff
153
members. Such testimony may have shed further light on the behavior
Jackson exhibited after leaving Kleins office that was observed by Williams,
Muhammad and Gongaware. Most importantly, the excluded testimony may
have established that Jacksons Demerol use, and his dependence on and
possible addiction thereto, impacted his behavior on June 25th. Since
Jacksons state of mind was relevant to the defense, which was premised on
Jackson self-injecting the lethal dose of propofol, the courts error in
excluding the testimony of the three witnesses cannot be found to be harmless
beyond a reasonable doubt.
These same considerations lead to the conclusion that exclusion of the
testimony of Klein, Pfeiffer and Brunn was prejudicial, even if this court finds
the applicable standard of review is that set forth in People v. Watson (1956)
46 Cal.2d 818, 836, because it is reasonably probable a result more favorable
to appellant would have occurred in the absence of the courts error. The
California Supreme Court has made clear that a probability in this context
does not mean more likely than not, but merely a reasonable chance, more
than an abstract possibility. (College Hospital, Inc. v. Superior Court (1994)
8 Cal.4th 704, 715, italics original, boldface added, citing People v. Watson,
supra, at p. 837, and Strickland v. Washington, supra, 466 U.S. 688 at pp.
693-694.) The more favorable outcome in the above context means changing
a single jurors mind. (People v. Soojian (2010) 190 Cal.App.4th 491, 519.)
154
As noted in Argument III-E, ante, this was not a slam dunk case, as the
jury deliberated for approximately eight hours over the course of two days.
(11CT-2638-2639, 2645-2646.) During defense counsels opening statement,
he told the jury Jackson was addicted to Demerol because of Kleins actions,
that Demerol addiction and withdrawal cause insomnia, and that the defense
expert would testify that in his opinion, Jackson was in Demerol withdrawal
during the last few days of his life. (8RT-2474-2475.) It is reasonably
probable that at least one juror would have found appellant not guilty of
involuntary manslaughter if Klein and/or his staff had been allowed to testify,
because such testimony would likely support the defense theory. Accordingly,
regardless of the applicable standard of review, appellants conviction must
be reversed.
155
V.
VIOLATED BY THE TRIAL COURTS EXCLUSION OF
CRITICAL DEFENSE EVIDENCE REGARDING
JACKSONS FINANCIAL CONDITION
A. Introduction
The trial court granted the prosecutions motion in limine to exclude
evidence of lawsuits or claims filed against Jackson, as well as evidence
regarding Jacksons financial records. It concluded that pursuant to section
352, any probative value of said evidence was outweighed by its prejudicial
impact. The trial court abused its discretion by excluding all evidence of
Jacksons financial condition, including lawsuits pending against him,
because such evidence was relevant to establish Jacksons state of mind on the
day he died, which may have explained his conduct that morning, and
supported the defense theory of the case. The exclusion of such evidence was
not harmless, and reversal of appellants conviction is required.

B. Relevant Pleadings & Proceedings
The prosecution filed a pretrial memorandum regarding evidentiary
issues. (8CT-1601-1606.) It contended the court should exclude evidence
and questioning of witnesses about any pending lawsuits or claims filed by or
against Jacksons family or estate, on the basis it was irrelevant to the case
because it did not relate to appellants participation in Jacksons death.
156
(8CT-1602.) When the court addressed the issue, the prosecution broadened
its request to encompass Jacksons financial records, arguing such evidence
would be equally irrelevant to appellants conduct and his care of Jackson.
(4RT-Q54-Q55.)
The defense represented it did not intend to offer evidence of lawsuits
against the Jackson family. Instead, it wanted to introduce evidence of
lawsuits against Jackson to the extent that it affects state of mind. It further
sought to introduce evidence regarding Jacksons finances. (4RT-Q56.)
Defense counsel stated the defense might contend Jacksons death was caused
by Jackson himself, and therefore his state of mind at the time it occurred was
relevant. He further argued:
State of mind for every individual is dependent on the
circumstances of their life. Finances is one of those
circumstances. The lawsuit that the prosecution is concerned
about us going into involves a lawsuit that Michael Jackson had
with an entity called Seaside, L.L.C., that was settled shortly
before A.E.G. and he entered into a contract for this tour in
London, England. The contract that we only received part of,
but we were able to get through subpoena, states that the first
advance to Michael Jackson was used to pay that settlement.
And that, ultimately, Michael Jacksons entire financial
situation at the time he signed the A.E.G. contract was so dire
that he couldnt even pay his own lawsuit settlements.
We are prepared to present information that Michael
Jackson had to sign this A.E.G. contract. His financial situation
required it. He had to sleep. And at the time that he died, he
was in a desperate situation that caused him to do certain
actions that perhaps ordinarily he wouldnt take or ordinarily
another person might not take.
157
(4RT-Q56-Q57.)
Defense counsel informed the court the defense was interested in the
fact that when Jackson died, there were approximately 38 lawsuits pending
against him, Jackson had not answered many of them, and the estate had to
deal with them. He represented that Jackson owed millions of dollars to the
IRS, and had not filed income taxes for three years; that prior to signing the
AEG contract Jackson had to settle the L.L.C. lawsuit, and he could not afford
to pay the settlement; and, when Jackson died, he owed 40 million dollars to
AEG. The defense contended the financial evidence directly related to
Jacksons state of mind when he died. (4RT-Q59.) It had obtained a financial
expert to address issues in regard to the problems that Jackson had developed
during that period of time prior to the AEG contract, and at the time that he
died. (4RT-Q62.)
The prosecutor contended the court should exclude evidence of any
lawsuits by or against the estate, family, Jackson, and appellant, because they
were completely irrelevant to the standard of care that we allege Dr. Murray
failed to provide Michael Jackson. (4RT-Q60-Q61.)
The trial court analyzed the issue pursuant to section 352:
The whole issue of the financial status of Michael
Jackson is such a divergence. When Mr. Chernoff mentioned
during the last proceeding that he had a forensic accountant, my
eyes widened because I foresaw the possibility this case would
involve the courts sitting as a probate court or as a civil court
158
in terms of determining valuation and all the permutations of
that.
To permit evidence of existing or past lawsuits as to Mr.
Jackson, just as to permit evidence of existing or past lawsuits
or obligations as to Dr. Murray, is exactly the evil which
Evidence Code section 352 cautions trial judges to avoid. One
would have a battle of accountants. One would have all sorts
of obtuse testimony regarding contractual issues and accounting
issues which would turn what should be a focused trial
involving a charge of involuntary manslaughter into a salacious
analysis of personal financial issues which dont have a direct
relationship and which call upon speculation.
People react to the pressures in life and the other realities
of life in very different ways. And to present a picture that
someone may be experiencing financial pressure or professional
encouragement or pressure, does not address that. It causes
speculation. It causes divergence and, in particular, it causes an
extraordinary consumption of time and distraction in a case
which diverts and distracts the jury to no end.
The court believes that such financial issues as they
relate to Mr. Jackson and as they relate to Dr. Murray are
distractions under Evidence Code section 352. First of all, I
dont find them to be relevant because of the distraction issue.
But in particular, under Evidence Code section 352, I find that
the extraordinarily prejudicial time-consumptive, distracting and
speculative nature of these types of inquires substantially
outweighs any probative value in terms of the attention of the
jury, in terms of distraction, and in terms of extraordinary time
consumption. We simply are not going there. Thank you.
(4RT-Q63-Q65.)
Evidence
Appellant incorporates by reference herein, Argument IV-C, ante.
159
Excluding Evidence Regarding Jacksons
Financial Condition Because It Was Relevant
to Disputed Issues in the Case, The Court
Could Have Narrowed the Scope of
Permissible Evidence, and its Probative Value
Was Not Substantially Outweighed By Any
Potential Prejudicial Impact
The defense wanted to introduce evidence of Jacksons dire financial
condition to show his state of mind. It sought to prove that Jacksons
financial future was completely dependent upon meeting his contractual
obligations for the This Is It tour, and if he was unable to meet said
obligations, he would be financially devastated. Evidence of Jacksons
financial condition would have supported the defense theory that based on
Jacksons state of mind, he engaged in the desperate act of self-administering
propofol in an attempt to get some much needed sleep, so he would be able to
rehearse for the tour, and perform up to the high standards expected of him
under the contract.
Evidence of Jacksons state of mind was clearly relevant to prove his
conduct on June 25th. (People v. Cooley, supra, 211 Cal.App.2d 173, 201.)
During trial, there was ample evidence that as the tour was approaching, there
was concern about Jacksons physical and mental health, and the fact he had
missed about a week of rehearsals in the week leading up to June 18th.
(8RT-2512-2513, 2557-2558.) During the June 19th rehearsal, Ortega was
extremely troubled by Jacksons behavior, as Jackson was slightly incoherent,
160
appeared lost, and was not well enough to rehearse. (8RT-2513-2514,
2550-2551.) With the tour date rapidly approaching, the pressure on Jackson
and the production team increased, and Jackson was informed it was critical
for him to attend rehearsals. (24RT-8255-8256.)
Just five days before Jacksons death, Ortega sent an e-mail to Phillips,
stating Jackson might not be able to rise to the occasion of the tour because
of emotional matters. He suggested that Jackson be psychologically
evaluated. (8RT-2516-2518; Exh. 1.) The e-mail ended as follows:
Finally, its important for everyone to know I believe that
he really wants this. It would shatter him, break his heart if we
pulled the plug. He is terribly frightened its all going to go
away. He asked me repeatedly tonight if I was going to leave
him. He was practically begging for my confidence. It broke
me [sic] heart. 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.
(8RT-2518-2519.)
Later that day, a meeting held at Carolwood was attended by Ortega,
Phillips, appellant, and Jackson. Ortega told Jackson the upcoming tour was
a massive production that needed to be built around him, and it could not
be done without him. Jackson was admonished that his engagement and focus
were required. (24RT-8255-8259, 8263-8264.)
Phillips testified that pursuant to the contract, Jackson was responsible
for the production costs of the tour, and was ultimately responsible for those
161
costs up until the day he died. (24RT-8287-8288.) The jury, however, was
not allowed to learn that when Jackson died, he owed AEG close to forty
million dollars, there were more than 30 lawsuits pending against him, and he
owed millions of dollars to the IRS. As a result, the jury never received
evidence that would allow it to consider how Jacksons dire financial situation
may have impacted his actions on June 25th, and whether those actions
ultimately lead to or caused his death.
The fact Jackson was financially destitute was clearly relevant to the
issues in the case, because it explains the reason why the 50 year-old singer,
who had last been on tour 12 years before in 1997, would not only agree to
return to the stage, but also sign a contract which committed him to
performing 50 concerts in a single arena. (8RT-2561; 24RT 8217.) The This
is It tour was not going to be an ordinary concert event. The initial contract
called for 31 shows at the O2 Arena, partially because Prince had performed
there 21 times, and Jackson wanted to do ten more performances than Prince.
(8RT-2564.) Prior to committing to increase the number of shows to 50,
Jackson requested that Phillips arrange for the Guinness Book of World
Records to be present for the 50th show, because he knew this was a feat that
no performer would ever been [sic] able to beat. (24RT-8244.)
In more ways than one, Jackson was a desperate man. He was battling
the demons of drug dependence and/or addiction as chronicled in Kleins
162
medical records, and he was waging a lengthy war against his raging chronic
insomnia. Jackson had the weight of the world on his shoulders because of
the huge debt he had incurred. The This is It tour offered him a solution to
his financial woes, but it also served to exacerbate his sleep problem, because
he was required to attend scheduled rehearsals. Based on his desperate
financial state, combined with his physiological problems, Jackson may have
acted recklessly and/or irrationally on June 25th by self-injecting a bolus dose
of propofol, because he was unable to get sleep, and absent sleep he knew he
would be unable to attend rehearsals and perform as he was required under the
contract.
The trial court had a legitimate concern about the possible consumption
of time that could result from the defense request to present complicated
evidence regarding Jacksons finances. However, it wrongfully concluded
such evidence was irrelevant merely because of the distraction issue. Based
on this erroneous conclusion, the court did not properly conduct an analysis
pursuant to section 352.
As illustrated above, Jacksons finances were relevant to establish his
state of mind, which could have accounted for his desperate act of self-
injecting the lethal dose of propofol. Instead of completely excluding
evidence of Jacksons finances, the court could have simply limited the scope
of admissible evidence regarding Jacksons financial situation. It could have
163
precluded the defense from presenting evidence involving complicated
financial analyses, and/or limited the number of witnesses the defense could
call to address the financial issues. The defense may have been able to
accomplish what it wanted to do by calling a single witness, such as a
representative from Jacksons estate, to provide a summary of Jacksons
financial situation at the time he died. Had the court ruled that at least some
evidence of Jacksons financial situation was admissible, the parties may have
been able to enter into a stipulation that Jackson owed AEG close to forty
million dollars when he died, he owed millions of dollars to the IRS, and he
had numerous lawsuits pending against him.
Based on the relevance of the proffered evidence, the trial court abused
its discretion by excluding, in a wholesale fashion, evidence of Jacksons
financial situation on the basis it would be a distraction and extremely time-
consuming. (People v. McDonald, supra, 37 Cal.3d 351, 372.) The
proffered evidence was relevant to establish Jacksons state of mind, which
was essential to the defense that Jackson engaged in the reckless act of self-
administering the lethal dose of propofol. Its probative value was not
substantially outweighed by its prejudicial impact, because the court could
have fashioned an order appropriately limiting the scope of the evidence.
32
Appellant incorporates by reference herein, the first paragraph of
Argument IV-E.
164
E. The Erroneous Exclusion of All Evidence of
Jacksons Financial Condition Violated
Appellants Federal and State Constitutional
Right to Present a Defense, and to Due Process
and a Fair Trial
Under the Sixth and Fourteenth Amendments, a defendant in a
criminal case is guaranteed a meaningful opportunity to present a complete
defense.
32
(Holmes v. South Carolina (2009) 547 U.S. 319, 324.) This right
is a fundamental element of due process; it includes the right to present the
defendants version of the facts, so that the jury may decide where the truth
lies. (Chambers v. Mississippi, supra, 410 U.S. 284, 294; Washington v.
Texas, supra, 388 U.S. 14, 19.)
Here the trial courts erroneous exclusion of all evidence regarding
Jacksons financial situation impeded appellant from making an effective
challenge to the prosecutions case, and prevented him from presenting a
defense in violation of the federal Constitution.
Since the courts error resulted in violating appellants federal
constitutional rights, the applicable standard of review is that set forth in
Chapman v. California, supra, 386 U.S. 18. Appellants conviction must be
reversed unless the exclusion of evidence of Jacksons financial situation is
165
found to be harmless beyond a reasonable doubt. (Id. at p. 24.) If the defense
had been able to introduce evidence showing the enormity of Jacksons
financial debt and obligations at the time he died, it would have been able to
demonstrate that Jackson knew if he did not meet his contractual obligations
for the This is It tour, the tour would be canceled, and he would be
financially devastated. Such evidence would have been compelling, and
supported the defense theory that Jackson self-administered the fatal dose of
propofol. Therefore the evidence cannot be found to be harmless beyond a
reasonable doubt, and reversal of appellants conviction is required.
Should this court find the applicable standard of review to be that set
forth in People v. Watson, supra, 46 Cal.2d 818, 836, reversal is still required,
because there was a reasonable chance that if the court had not excluded all
evidence of Jacksons financial situation, appellant would not have been
found guilty of involuntary manslaughter. (College Hospital, Inc. v. Superior
Court, supra, 8 Cal.4th 704, 715.) Evidence of the enormity of Jacksons debt
and financial obligations would have offered the jurors a new perspective on
the defense theory of the case. Since this was not an open and shut case, and
the prosecutions case was full of holes (see Argument I, ante), it is
reasonably probable that at least one juror would not have voted to convict
appellant of the charged offense. Reversal is therefore required.
166
VI.
VIOLATED BY THE TRIAL COURTS DENIAL OF THE
DEFENSE MOTION TO INTRODUCE EVIDENCE OF
THE THIS IS IT TOUR CONTRACT BETWEEN AEG
LIVE AND JACKSON
A. Introduction
During trial, the defense filed a motion to introduce evidence of the
This is It tour contract between AEG Live and Jackson. The trial court
denied the motion, ruling that the contract itself, as well as any testimony
about the contract, would be inadmissible. It found the contract was not
relevant to specific issues in the case, it was a complex legal document
involving collateral issues, and it excluded the contract pursuant section 352.
The trial courts ruling was an abuse of discretion, because the contract was
relevant to establish Jacksons state of mind on June 25th to explain his
conduct that morning, which may have supported the defense theory of the
case. Appellant was prejudiced by the exclusion of evidence of the contract,
and reversal of his conviction is required.
Prior to opening statements, the prosecutor informed the court the
defense was going to seek the admissibility of the contract between AEG Live
and Jackson, and he was objecting because it is largely delving into Michael
167
Jacksons personal finances. (8RT-2118.) He argued evidence of the
contract should be excluded because the court had already excluded evidence
related to Jacksons finances, and if the contract was relevant for some other
purpose, it could be presented through the testimony of a witness, rather than
through the admission of the actual contract. Defense counsel responded that
the defense would not delve into any issues regarding Jacksons debt, but
instead, they were interested in what was at stake in the contract, both
positively and negatively, as they believed it impacted decisions made by
Jackson. (8RT-2118-2119.)
The court indicated it needed to review the contract, and hear further
argument, but noted it was inclined to find that the contract was not relevant.
(8RT-2119.) Defense counsel clarified its position as follows:
We think that Michael Jackson was involved in certain
acts that ended his own life. We think that he was desperate at
the time that he did that. We also believe that during the period
of time prior to his death, there were some problems with his
relationship with AEG and his rehearsals, which may have led
AEG to pull the plug on this particular O2 concert series. This
had a tremendous stressful and important mental effect on
Michael Jackson and impacted the decisions that he made.
The contract is part of that important information and
important evidence to demonstrate to the jury that the actions
that he took were, under the circumstances for Michael Jackson
at the time, not unreasonable.
If we cant explain to the jury why these actions for
Michael Jackson were not unreasonable, we cannot defend on
that basis. We cant make that argument.
***
168
. . . he was preparing for a concert tour. He was under contract
with AEG. The requirements that were made on him, the
desires that he had to fulfill those contracts, were absolutely
pertinent to his mental state at that moment when he died and
that is why we are trying to offer that.
(8RT-2119-2120.)
After the conclusion of the prosecutions case-in-chief, the defense
filed a written motion to admit evidence of the contract (the Agreement)
between AEG Live and Jackson for the This Is It tour. (11CT-2558-2603.)
It contended the Agreement constituted relevant and material evidence, and
sought to present the contract through the testimony of Phillips, the President
and CEO of AEG Live. The defense argued Jackson acted desperately by
self-administering propofol in order to fall asleep, because of the enormous
pressure he was facing in regard to the circumstances of his life, including his
responsibilities under the This Is It contract. It noted that during the early
morning hours of June 25th, Jackson told appellant if he did not get some rest
he would have to cancel rehearsals and ultimately the show. The defense
pointed out the contract provides that if Jackson failed to comply with the
terms thereof, he would suffer dire consequences. It asserted evidence of the
contract was relevant and material, and therefore it was imperative for the
jury to view the Agreement to understand the stringent requirements that were
placed on Mr. Jackson, and to illustrate that, under the circumstances, the
actions undertaken by Mr. Jackson on June 25, 2009, were not unreasonable.
169
(11CT-2560.)
The defense noted the contract provided for initial advances of money
to Jackson that were secured by property. If Jackson were to breach the
contract, AEG Live would have the right to recoup any and all advances
made to Mr. Jackson, along with the production costs. (11CT-2560.) The
contract also sets forth numerous obligations and responsibilities required of
Jackson. The defense contended that prior to his death, Jackson failed to meet
some of his contractual obligations, because he missed rehearsals and botched
a press conference, and he had been warned by AEG Live that further
breaches could result in termination of the contract. (11CT-2560-2561.)
Appellants motion acknowledged the courts prior ruling excluding
evidence related to Jacksons debt and personal finances. It states the defense
would abide by said ruling, but argued what was at stake under the contract,
and the probable impact it had on decisions made by Jackson, was both
relevant and vital to the defense. The defense contended, This evidence
directly supports the defense theory of the case - that Mr. Jackson self-
administered propofol due to the enormous pressure and stress placed on him
pursuant to the Agreement, and that Jacksons mental state was highly
relevant to appellants defense. It concluded evidence of the contract should
be admitted because any potential prejudicial impact was outweighed by its
probative value. (11CT-2561-2562.)
170
During the hearing, defense counsel pointed out the main defense was
that Jackson had taken actions into his own hands, and thus his state of mind
was highly relevant to the actions we believe he took which were the desired,
the desperate desire to get to sleep. (24RT-8102.) He argued the contract
showed two important things. First, almost immediately after entering into the
contract, Jackson became responsible for all of the pre-production costs and
advances. Second, during May and June when appellant was treating Jackson
regularly, Jackson was in a position where if the tour was canceled, he would
be responsible for the pre-production costs which Phillips would testify were
close to $40,000,000. In the days preceding Jacksons death, he was also
burdened by the fact there had been discussion between AEG, Ortega, and
himself about pulling the plug on the tour because he was not performing
adequately. During the week before his death, Jackson was regularly missing
rehearsals, and an emergency meeting was held at Carolwood. At that point
Jackson was aware he had to perform up to expectations, and if he failed to
do so, not only would he be unable to profit from the tour, he would be
responsible for payment of a tremendous amount of money. Defense counsel
argued if evidence of the contract was excluded, the defense would not be
able to argue those important points. (24RT-8102-8103.)
The prosecution contended evidence of the contract was irrelevant to
prove Jackson accidentally killed himself. It argued the contract was full of
33
Phillips subsequently testified the primary reason Jackson decided
to restart his career was because he wanted to finally settle down and get a
really, really good home for the kids and for his family, so they werent, in his
words, living like vagabonds. (24RT-8232.)
171
legal complexity which would require the jury to determine complex
provisions. Finally, it argued that based on the courts prior ruling excluding
evidence of Jacksons finances, the contract should be excluded. (24RT-
8105.)
Defense counsel reminded the court the prosecution had presented
three witnesses who testified about the contract between AEG and appellant,
and they did so to show appellants state of mind and why he administered
propofol to Jackson. The defense was now seeking to show Jacksons state
of mind to demonstrate why he was desperate to self-administer propofol. It
was relevant, not prejudicial, and important to show the effect it had on
Jacksons state of mind. (24RT-8106-8107.)
The court asked whether any evidence had been or would be presented
regarding statements made by Jackson indicating he had a financial
motivation, rather than a performance motivation, for entering into the
contract. (24RT-8107.) Defense counsel responded that the court had
prohibited the defense from getting into Jacksons finances at the time he
entered into the contract, and thus they could not present such evidence.
33
Counsel stated they could have presented evidence establishing Jackson was
172
almost $400,000,000 in debt, which included three bankruptcy trusts.
Counsel represented that Phillips could testify about what was at stake
pursuant to the contract, and what had accumulated at the time Jackson died.
However, the defense was in the position where it had already been precluded
from presenting evidence about what was occurring in Jacksons life prior to
that time. (24RT-8108-8110.)
The court noted it had previously excluded specific analyses of
finances of Mr. Jackson, and it would not revisit said issue. It ruled the
contract, as well as any testimony about it, was not relevant to specific issues
in the case. The court stated that even if there were bare or bald relevance,
the complicated legal terminology in the contract would render the evidence
substantially more prejudicial than probative. It found the defense proffer
contained a tremendous amount of speculation regarding Jacksons
motivations, and it noted this was a homicide case, rather than a contractual
dispute. The court denied the motion, and sustained the prosecutions
objection to the admission of the contract, and any testimony by Phillips or
any witness regarding the financial aspects of the tour. (24RT-8112-8114.)
Defense counsel stated the defense had not intended to present any
accounting information or accountant witnesses. They simply wanted to
inquire about obligations under the contract. The court reiterated the jury
would be presented with an extraordinarily complex document.
173
(24RT-8114-8115.) It found it involved collateral issues, and evidence of the
contract was being excluded pursuant to section 352. (24RT-8115-8116.)
Evidence
Appellant incorporates by reference herein, Argument IV-C, ante.
Excluding Evidence of the Contract Between
AEG and Jackson
For the reasons set forth in the defense motion, and during oral
argument presented by defense counsel, as discussed in section B, ante,
evidence of the contract between AEG and Jackson was extremely relevant to
the defense. As discussed in the preceding argument, prior to trial the court
granted the prosecutions motion to exclude all evidence of Jacksons
financial condition. Admission of the contract, or evidence related thereto,
would have allowed the defense to introduce evidence critical to appellants
defense, without specifically introducing evidence of Jacksons finances.
It is curious the court found the contract was not relevant to the case,
because Gongaware, the producer/promoter of the tour, had already testified
about some aspects of the contract, including the number of shows and the
venue. (8RT-2562-2564, 2567.) The trial court had earlier allowed, over
defense objection, the prosecution to play two edited video clips from the
This is It documentary, each showing Jackson performing a song during one
174
of his last two rehearsals. (8RT-2532-2536; Exh. 2.) The prosecution argued
the clips were important to show Jackson was highly engaged in rehearsals
and the production, and involved in making decisions about the show.
(4RTQ-40-41.) The court found the clips were relevant to issues in the case,
and not substantially more prejudicial than probative. (4RTQ-47-48.)
Appellant submits that evidence of the contract had less prejudicial impact and
more probative value than edited video clips from a documentary, which just
served to remind the jury that the King of Pop was dead.
Based upon the courts prior in limine rulings excluding the testimony
of Klein, Pfeiffer, and Brunn, and evidence of Jacksons financial condition
(see Arguments IV and V, ante), it appears the court did not understand the
relevance of a victims state of mind to prove the victims conduct. (People
v. Cooley, supra, 211 Cal.App.2d 173, 201.) Specifically, the court did not
realize Jacksons state of mind was relevant to prove his conduct on the day
he died.
The court should have found evidence of the contract admissible, so the
jury could have learned about certain terms of the contract, and better
understood the pressure Jackson was under regarding the tour, and what was
expected of him. Such evidence was relevant to establish Jacksons state of
mind on June 25th, to demonstrate why he may have engaged in the desperate
act of self-administering propofol.
175
When the court denied the motion, it stated, This is not a contractual
dispute. This is a homicide case. (24RT-8113.) Nevertheless, the court had
earlier allowed the prosecution to introduce evidence of the employment
contract appellant signed to be Jacksons personal physician. Jorrie, the
attorney who drafted the Independent Contract Agreement, was called as a
prosecution witness, and testified about drafting the agreement, and
modifications made thereto with appellants input. (9RT-2732-2745, 2748-
2749.) Gongaware was also called by the prosecution, and he testified about
his contract negotiations with appellant. (8RT-2576-2580.) Additionally, the
employment contract was admitted into evidence. (9RT-2751; 19RT-6006;
Exh. 4.)
With regard to the defense motion to admit evidence of the tour
contract, defense counsel represented that Phillips would be able to testify
regarding what was at stake for Jackson under the contract, and what had been
accumulated pursuant to the contract at the time Jackson died. (24RT-8110.)
Counsel stated the defense did not intend to call any accounting or expert
witnesses to testify about the contract, and it merely wanted to ask about
obligations in the contract. (24RT-8114-8115.) The courts concern about the
jury being presented with an extremely complex document was therefore
unfounded, and its exclusion of the contract on the basis it was not relevant,
and involved collateral issues, was clearly an abuse of discretion.
176
E. The Erroneous Exclusion of Evidence of the
Contract Between AEG and Jackson Violated
Appellants Federal and State Constitutional
Right to Present a Defense, and to Due Process
and a Fair Trial
Appellant incorporates by reference herein, the first paragraph of
Argument V-E, ante. The trial courts erroneous ruling excluding evidence
of the contract between AEG and Jackson precluded appellant from making
a persuasive challenge to the prosecutions case, and thereby prevented him
from presenting a defense in violation of the federal Constitution.
Based on the violation of appellants federal constitutional rights,
reversal of his conviction is required unless the exclusion of evidence of the
contract is determined to be harmless beyond a reasonable doubt. (Chapman
v. California, supra, 386 U.S. 18, 24.) If the defense had been able to
introduce evidence of the contract, it would have revealed the contractual
obligations of Jackson, and clearly demonstrated the enormity of pressure
Jackson was under as he prepared for his upcoming tour. Such evidence
would have constituted substantial support for the defense theory that Jackson
was in a desperate state, and had self-administered the fatal dose of propofol.
Based on these reasons, the exclusion of evidence of the contract cannot be
found to be harmless beyond a reasonable doubt, and appellants conviction
177
must be reversed.
Should this court find the applicable standard of review to be that set
forth in People v. Watson, supra, 46 Cal.2d 818, 836, reversal is still required,
because if the jury had learned about Jacksons contractual obligations, and
the enormous pressure he faced therefrom, there was a reasonable chance that
appellant would not have been found guilty of involuntary manslaughter.
(College Hospital, Inc. v. Superior Court, supra, 8 Cal.4th 704, 715.) Not
only did the court exclude evidence of the contract and the contract itself, but
as a result of its ruling, it sustained objections to most of the questions the
defense asked Phillips that even tangentially related to the terms of contract.
The court sustained the prosecutions relevance objections to questions about
the following: AEGs stake in the contract, an estimate of how much Jackson
could have made from the contract, whether the contract addressed the early
production costs of the show, whether AEG was paying for Jacksons
residence, whether AEG would lose money if the concerts were canceled, and
whether AEG was insured. (24RT-8234-8236, 8283.)
The court allowed Phillips to answer a question regarding whether
Jackson was ultimately contractually responsible for production costs up until
June 25th, and he stated Jackson was so responsible. The court, however,
sustained objections to the following questions: whether Jackson was
responsible for the tens of millions of dollars for pre-production costs,
178
whether AEG had cancellation insurance, and whether AEG was currently
being sued. (24RT-8283, 8287-8288.)
Since this was not a case with overwhelming evidence against
appellant (see Argument I, ante), if the court had not excluded evidence of the
contract, the jurors would have been given a more realistic perspective of the
enormous pressure Jackson was facing because of his contractual obligations.
Given the magnitude of this evidence, it is reasonably probable the jury would
not have unanimously voted to convict appellant of the charged offense.
Accordingly, reversal of appellants conviction is required.
179
VII.
APPELLANTS CONSTITUTIONAL RIGHTS TO DUE
PROCESS, A FAIR TRIAL, AND A FAIR AND
IMPARTIAL JURY WERE DENIED AS A RESULT OF
THE TRIAL COURTS DENIAL OF THE DEFENSE
MOTION TO SEQUESTER THE JURY
A. Introduction
After the court issued a ruling allowing the trial to be televised, the
defense filed a motion requesting the court to sequester the jury during the
entirety of the proceedings. The court denied the request, finding there were
substantial factors weighing against sequestration, and the procedures it was
going to implement would preserve the integrity of the trial. Although the
court rightfully considered the adverse affect sequestration can have on jurors,
it failed to recognize that in this age of digital media and smart phones, when
a case garners worldwide attention, and the jury is not sequestered, it is
essentially impossible for jurors to avoid having any exposure to the case
outside the courtroom. Here, as a result of the courts refusal to sequester the
jury, appellant was denied his constitutional rights to due process, a fair trial,
and to a fair and impartial jury, and reversal of his conviction is required.
B. Applicable Law
1. A Trial Court Has the Statutory
A u t h o r i t y t o O r d e r
Sequestration of a Jury
A trial court has the statutory authority to order the sequestration of a
180
jury. (Pen. Code 1121.) The decision regarding whether to sequester a jury
rests within the sound discretion of the trial court. (Ibid.; People v. Gallego
(1990) 52 Cal.3d 115, 198; People v. Bunyard (1988) 45 Cal.3d 1189, 1218;
People v. Manson (1977) 71 Cal.App.3d 1.)
2. A Defendant in a Criminal
Proceeding Has a Constitutional
Right to Due Process and a Fair
Trial by an Impartial Jury

A defendant in a criminal case has a federal constitutional right to a fair
trial by a fair and impartial jury. (U.S. Const., 6th Amend.) This is a
fundamental right, applicable to the states through the Fourteenth
Amendment. (Duncan v. Louisiana (1968) 391 U.S. 145, 149.) It includes
the right to a trial by a jury that is free from outside influences, including
prejudicial pretrial publicity. (Sheppard v. Maxwell (1966) 384 U.S. 333,
362.)
The California Constitution also guarantees a criminal defendant the
right to a trial by an impartial and unprejudiced jury. (Cal. Const., art. I, 16;
People v. Wheeler (1978) 22 Cal.3d 258, 265, overruled on other grounds in
Johnson v. California (2005) 545 U.S. 162, 165.) The failure of a trial court
to sequester a jury may result in denying a defendant his constitutional right
to a fair trial. (People v. Ayers (1975) 51 Cal.App.3d 370, 380.)
In protecting the right of an accused to a fair and impartial jury, the trial
181
judge plays a significant role. (See e.g., Nebraska Press Assn. v. Stuart (1976)
427 U.S. 539, 555; Sheppard v. Maxwell, supra, 384 U.S. 333, 362.) As
articulated by the United States Supreme Court in In re Murchison (1955) 349
U.S. 133:
Due process requires that the accused receive a trial by
an impartial jury free from outside influences. Given the
pervasiveness of modern communications and the difficulty of
effacing prejudicial publicity from the minds of the jurors, the
trial courts must take strong measures to ensure that the
balance is never weighed against the accused. And appellate
tribunals have the duty to make an independent evaluation of
the circumstances.
(Id. at p. 136 [emphasis added].)
C. Relevant Procedural History
On February 7, 2011, the trial court granted the motion of Media
Organization Radio and Television News Association of Southern California
to allow television coverage of the trial, excluding jury selection and faces of
the jurors, but including the evidentiary portions of the proceedings and the
arguments and the opening statements and other aspects of the case as I make
that determination. (7CT-1303-1304; 2RT-A25-A28.) Neither party had
objected to the motion. (2RT-A23-A24.)
Voir dire commenced on March 24, 2011, with a panel of 159
prospective jurors. (7CT-1470.) The following day, voir dire continued with
a second panel of 182 prospective jurors. (7CT-1472-1472A.) On April 7,
182
2011, a third panel of 160 prospective jurors was called for voir dire. (8CT-
1574.)
The defense subsequently filed a motion to continue the trial. (8CT-
1674-1690.) On May 2, 2011, the court granted the motion, ordered the
prospective jurors released, and trial was set for September 8, 2011. (8CT-
1691-1692; 4RT-S12, S18, S23.)
On August 18, 2011, the defense filed a Notice of Motion and Motion
for Sequestered Jury. (10CT-2225-2238.) It was brought on the grounds
that it is necessary to sequester the jury in order to ensure that it is free from
outside influences and guarantee the defendant a fair trial by an impartial
jury. (10CT-2226.) The Introduction, notes this was an unusual case,
involving one of the most well known people in the world, and the death of
Jackson, along with his memorial service and all court appearances in the
case, had attracted unprecedented media coverage. It represented that 33
million people watched Princess Dianas funeral, and more than 31 million
people watched Jacksons July 7th memorial service. The defense contended
there was a reasonable expectation that appellants trial would be the most
publicized in history. (10CT-2227.)
The motion states, The parties in this case learned early about the
indoctrination that prospective jurors received from the publicity already
created from this case. (10CT-2227.) During the initial aborted jury
34
On March 24, 2011, only two out of the 160 prospective jurors in
the courtroom had not heard of the case (3RT-J1, J17); the next day, only one
juror out of the second panel of 182 prospective jurors had not heard of the
case (7CT-1472; 3RT-K1, K23); and on April 7, 2011, every one of the 160
prospective jurors on the third panel had heard about the case. (8CT-1574;
3RT-N12.)
183
selection process, several hundred jurors were questioned, and only one juror
denied having heard anything about the subject case.
34
There had not been
any consideration given to sequestration at that time, largely because the
parties did not have a good and recent comparison on how the media would
handle a televised case. Then along came Casey Anthony. (10CT-2227-
2228.)
The defense pointed out the O.J. Simpson trial had been televised 15
years before, but at that time the Internet was not readily available, and the
O.J. jury had been sequestered. (10CT-2228.) It addressed the fact that in
appellants case, the court previously ruled the trial could be televised. After
acknowledging the public has both a constitutional and a statutory right to
open courts, the defense contended, There can be no doubt that there is a
sterilizing affect to the courtroom proceedings when the entire public is
permitted access. (10CT-2229-2230.) It was the defense position that the
recent case of State of Florida v. Casey Anthony (Anthony) demonstrated
the danger that is created to a fair trial when basic information is managed for
the purpose of entertainment and television ratings. The motion includes the
184
following quote from the judge who presided over the Anthony trial: It was
reported that television ratings for the trial were extraordinary. Clearly, the
broadcast of an official and serious court proceeding such as this trial where
a young girl was dead and her mother faced the death penalty devolved into
cheap, soap-opera-like entertainment. Unquestionably, use of Florida public
records laws by the media ... has become simply a tool to sell a story.
(10CT-2230.)
The defense noted that all news organizations benefitted from the
Anthony trial, and it pointed out that Headline News Network drew its
largest total audience in its 29 year history for its Anthony trial coverage. The
viewership for Nancy Grace rose 80 percent, as she fed on the public anger,
and campaigned for Anthonys conviction. Her campaign continued even
after Ms. Anthonys acquittal and included virtually nonstop on-air abuse of
not only the defendant, but of the jurors and defense attorneys involved.
Grace engaged in continuous character assassination with regards to Ms.
Anthony, the woman she condescendingly referred to as Tot Mom. (10CT-
2230-2231.) As noted in the motion, the Anthony jurors would not have been
affected by the media, because the jury had been sequestered during the
entirety of the trial. Here, the defense contended that given the increasing
viewership of Grace,her prejudicial impact on jurors would be significant
in appellants case. (10CT-2231.)
185
The motion states:
Sequestration is not usual, but it would be hard to find a
more unusual case requiring its implementation. . . it is
Pollyanna to expect the jury members to go home each workday
and weekend for six weeks and entirely avoid the mass of
exposure this trial will engender. Every supermarket, gym, bar
and restaurant has at least one television and it is usually tuned
to a news source. Despite their best efforts, these jurors will be
identified by neighbors, relatives and co-workers as jurors, who
will no doubt want to discuss the trial process and their opinions
of it.
(10CT-2233-2234.)
The fact the Internet has become ubiquitous was discussed in the
motion. Every court appearance in this case has drawn extensive Internet
coverage, and it was anticipated that during trial, the publicity would
intensify. The defense contended sequestration of the jury was the only way
the jurys decision-making process would be insulated, and the fundamental
rights of a defendant must be given priority over the budget crisis the court
system was currently facing. (10CT-2234.)
The Conclusion states:
The nature and extent of the publicity, including the
massive print and Internet media coverage, extensive radio
coverage, and television coverage of this case has been
widespread and prejudicial to Dr. Murray. There is great
danger that Dr. Murray will not be able to rely on a fair trial, if
the jury is allowed access to this prejudicial coverage. . . .
(10CT-2236.)
During the hearing on the motion, lead defense counsel aptly argued
186
that since this was such a highly publicized case, If this isnt a proper case for
sequestration, then there really is no proper case for sequestration. And we
still firmly believe . . . it is the only way that Dr. Murray can have a fair trial
preserved. (5RT-BB2.)
The prosecution did not file any written opposition. At the hearing, the
prosecutor argued sequestration was not necessary. He contended that
sequestering jurors turns them into inmates completely removed from
everything. (5RT-BB2-BB3.)
The court denied the motion, and explained the basis for its ruling.
(10CT-2251-2252; 5RT-BB3-BB9.) It stated in part:
But I believe that the types of admonitions and
instructions and directives which I provide, and the respect with
which each juror is going to receive from the members of the
Los Angeles Superior Court, the staff, the Sheriffs Department,
and the reporters office and the clerks office, will provide
them with a sense of dignity and a sense of responsibility which
they will acknowledge and, in return, demonstrate to the
participants in this case.
There will be information available out there,
unquestionably, as the defense has mentioned which the defense
calls an unlimited trove of information. I expect that the
jurors will follow the high road, and that means that they will
not be in receipt of, or in contact with, information regarding
this case outside of the evidence and law presented in this case
and in this courtroom.
. . . I do not find sequestration to be the answer in this case. If
anything, it would be, I think, more of a problem for individual
jurors.
Certainly, anecdotally, sequestered jurors have indicated
187
they have felt like inmates, that they felt they were being
imprisoned. They are monitored 24/seven. . . .
And anecdotally, many sequestered jurors have indicated
that, if anything, they found that the sequestration process was
so frustrating, so intimidating, so cruel and unusual, that it
actually interfered with their fair assessment of the evidence and
the law and that can have a dramatic adverse impact on the
litigants themselves because of whatever else is going on in the
jurors minds.
So as far as Im concerned, those factors are sufficiently
of concern to me as to deny any motion for sequestration of
jurors.
I should add that while I raise the issue of cost, that is not
of overriding consideration. As Ive indicated repeatedly
through this trial proceeding, justice trumps everything. When
one talks about cost, it is a factor. The estimate provided to me
for the cost of sequestration would exceed a half a million
dollars. The State of California is undergoing severe financial
problems, as is the Los Angeles Superior court.
If this were a close call, I would unhesitatingly order
sequestration regardless of cost. It is not a close call to me . . .
When one factors in the extraordinary financial impact,
that again weighs so heavily in terms of not sequestering the
jury on a 24/seven basis.
This court is going to have very strict rules and
regulations which are going to be provided to the jurors. The
jurors are going to be eating their meals and snacks in the jury
room during the court day so the jurors will not be roaming free
during the court day. That causes me enough concern as it is.
(5RT-BB6-BB8.)
On September 2, 2011, the defense filed in this court, a Petition for
Writ of Mandate and/or Other Extraordinary Relief and for a Stay of Trial.
188
(10CT-2282-2306.) On September 7, 2011, this court denied the petition and
request for stay (B235619), based on the absence of a showing of abuse of
discretion. (10CT-2314.)
Renewed voir dire commenced on September 8, 2011, with a panel of
187 prospective jurors. (10CT-2323.) The court asked that any prospective
juror who had not heard about the case, and the death of Michael Jackson, to
raise their hand. The record reflects that not a single juror raised their hand.
(6RT-10.) The following day, voir dire continued with the second and final
panel of 185 prospective jurors. (10CT-2325.) Again, in response to the
courts inquiry, no juror indicated they had not previously heard about the
case. (6RT-312.)
D. Media Coverage of the Trial
As illustrated above, the empaneled jury was one in which every single
juror and alternate had heard about the case before they appeared in court as
prospective jurors. The defense prediction that appellants case would
generate an enormous amount of publicity was correct. The scope of the
media coverage in the case was unprecedented.
As noted in the March 2012 edition of the California Lawyer
Magazine, More than 2,200 reporters from around the world obtained
credentials to cover the proceedings - more than for the O.J. Simpson and
35
http://www.callawyer.com/clstory.cfm?pubdt=201203&eid=920905
&evid=1
36
http://m.ibtimes.com/michael-jackson-dr-conrad-murray-trial-full-
coverage-nancy-grace-dr-drew-perezhilton-com-tmz-com-220830.html
37
http://tv.yahoo.com/news/media-covering-conrad-murray-trial-172
2001830.
189
Scott Peterson murder trials, combined.
35
On September 27, 2011, the day
opening statements were presented, the International Business Times reported,
The court has assigned seats to 32 media organizations, up from 21 in its
initial plans. Those expected to cover the trial range from U.S. television
networks and local stations to Japans TV Asahi and numerous websites.
36
A Yahoo article posted on the Internet on the day of opening
statements discussed the media coverage of the trial. Cable network HLN was
providing round-the-clock coverage of the trial, CNN.com/live and CNN
mobile apps were bringing the trial live, and CNN was live blogging the
trial. UStream was providing a live broadcast of the trial through CBS
News, where viewers around the world were able to watch and interact with
other viewers. Numerous websites, including TMZ.com, Mediaite.com,
Huffington Post, and E! Online, were offering live streams from the
courthouse, along with updates. Publications, including the Los Angeles
Times, ABC News, and Washington Post, were reporting from inside the
courtroom with details on the proceedings.
37
There was even a smart phone application that provided trial coverage.
38
http://www.hollywoodreporter.com/news/michael-jackson-trial-app
-murray-241671
190
On the second day of trial, a report in The Hollywood Reporter stated:
The Michael Jackson Doctor Trial smartphone app is
the No. 1 seller among the Apple stores paid news apps.
Launched Monday, the 99-cent app offers daily highlights,
analysis and timelines of Dr. Conrad Murray's manslaughter
trial, which started Tuesday.
The app is compatible with the iPhone, iPod touch, iPad
and Android phones and tablets, and is the creation of Fox
Television Stations Inc. The content is produced by Los
Angeles Fox affiliate KTTV.
38
E. The Jury Was Repeatedly Instructed Not to
Discuss the Case With Anyone and to Avoid
Contact With Internet and Media Coverage of
the Case, But Jurors Were Allowed Access to
Cell Phones and the Internet Outside the
Courtroom
During voir dire on September 9, 2011, when the court addressed the
prospective jury panel, it stated:
. . . , I dont want you to put your computers down or to turn off
your cell phones for five weeks, no, communicate with people.
Do your jobs. But just adjust your lifestyle so you dont come
into contact with anything involving this case. Thats what we
ask you.
(6RT-329.)
A two-page Admonishments/Orders to Prospective Jurors was filed
on September 23, 2011. (10CT-2350-2351.) It includes the following
paragraph:
191
You must not allow anything that happens outside of the
evidence presented in the courtroom to affect your opinions or
decisions. Do not conduct on your own or through another
person any investigation of the facts or the law. Do not read,
listen to, or watch any report or commentary about this case
from any source. Do not view or listen to any television or
radio program, movie, book, or newspaper or magazine article
regarding any aspects of the case. Do not access any Internet
web-site (including, but not limited to, any search engine site)
or post any messages or access any blogs on any site
(including, but not limited to any social-networking site) or
send or read any texts or tweets as to any aspects of this
case or the persons or subjects mentioned or involved in it.
(10CT-2350.)
As soon as the alternate jurors were sworn in, the court read some
admonishments and instructions to the jury. Jurors were instructed not to
discuss the case or communicate about it with anyone, and to avoid all Internet
and media coverage of the case. The admonishment included the following:
. . . You must not read, listen to, or watch any news report or
any other commentary about this case from any source.
Do not come into any contact with any television or radio
program, movie, book, newspaper, or magazine article
regarding any aspect of this case.
Do not come into contact with any Internet websites,
including, but not limited to any search engines or any blogs
regarding any aspects of this case or the persons or subjects
mentioned or involved in it.
* * *
Do not access or post any blogs, including, but not
limited to any blogs on any social networking site or text or
tweet or read any text or tweets regarding anything about this
case.
192
* * *
If you have a cell phone or other electronic
communication device, please keep it turned off while you are
in this courtroom and during jury deliberations. An electronic
device includes any data storage device. . . .
(7RT-2016-2019; see also 10CT-2355-2356.)
At the end of each day of trial, the court delivered an admonition that
included the essence of the following two paragraphs:
Do not come into contact with any television or radio
programs, newspaper, or magazine articles, books or the
Internet regarding any of these topics, subjects, or persons.
Do not access on your own or through another person
any research materials, including, but not limited to, any
Internet website, including, but not limited to, any search engine
sites such as Google, Ask, or Bing, or social network sites,
including, but not limited to, Myspace or Facebook, or text or
Tweet or access any messages or post or access any blogs
regarding any topics, subjects, or persons mentioned or
involved in the case.
(8RT-2584-2585; 9RT-2963-2964; 10RT-3235; 11RT-3567-3568; 12RT-
3832; 13RT -4058; 14RT-4364; 15RT-4720; 16RT-4918; 17RT-5289; 18RT-
5626; 19RT-5840; 20RT-7076; 21RT-7388; 22RT-7633; 23RT-8017; 24RT-
8331; 25RT-8502; 26RT-8915; 27RT-9110; 28RT-9511; 29RT-9670.)
The above-cited portion of the courts admonition was also included
in a modified version of CALCRIM No. 201, in the instructions provided to
the jury at the end of the case. (11CT-2624-2625; 29A-RT-9913-9914.)
39
A Google search for the Conrad Murray trial on 3-24-13, returned
About 4,490,000 results (0.17 seconds).
193
F. The Trial Court Abused Its Discretion By
Denying the Defense Motion to Sequester the
Jury Because the Unprecedented Fame of the
Alleged Victim Combined With the
Pervasiveness of Modern Media Rendered It
Impossible for Appellant to Receive a Fair
Trial With a Nonsequestered Jury in a Case
That Was Televised and Streamed Live
Around the World
As illustrated above, appellants trial was played out on a worldwide
stage, with live trial coverage both on television and through the Internet.
39
During the trial, Phillips, the President and CEO of AEG Live, called Jackson
the greatest star in contemporary music. (24RT-8216.) It is hard to imagine
the necessity of sequestering a jury in any case, if the trial courts denial of
sequestration in appellants case is not found to be an abuse of discretion.
Although the trial court gave lengthy admonishments to the jury on a
daily basis about the necessity of avoiding all media coverage of the case, the
court did not take adequate steps to ensure that such exposure would not
occur. During voir dire, the court informed the prospective jurors they would
be allowed to use social media as long as it had nothing to do with appellants
case. It stated, I said if you want to Google, or you want to Twitter, want to
Tweet, or Facebook, go for it. Just nothing having to do with this case.
(7RT-1868.) After the jurors were sworn and seated in the courtroom, they
194
were precluded from access to their cell phones and computers, but that
restriction only applied when they were inside the courtroom itself. Once they
exited the courtroom for breaks or lunch, when they were in the jury room not
deliberating, and when they went home at night, they were allowed access to
the Internet on their phones and computers.
It is simply unrealistic to expect that jurors would be able to leave the
courtroom and insulate themselves from all media coverage of the case. Since
they were allowed to use the Internet, including Facebook and Twitter, they
would have had no control as to whether a post about the trial appeared on
their feed. While they could certainly avoid reading newspapers and
magazine articles about the case, and searching the Internet for articles, blogs
and other commentaries about the trial, they would have had no actual ability
to prevent others from sending or posting trial information on sites they were
accessing.
Most restaurants, bars, and gyms have televisions, and if a juror was
out having a meal or a drink, or working out, they might inadvertently see or
hear a news report about the trial. Even if a juror was home watching
television, it was likely they would see a teaser for an upcoming newscast that
involved something that happened during appellants trial that day. If a juror
had a smartphone, and looked at Twitter at any time during the pendency of
the trial, it is likely they would have seen tweets about the case. In this age of
195
pervasive digital media, when many people have access to the worldwide web
in the palm of their hand on their smartphone, it is simply unrealistic to expect
a nonsequestered jury in a very high profile case of worldwide interest, to
leave the courtroom and avoid all media regarding the case.
G. The Courts Error In Denying the Defense
Motion to Sequester Is Reversible Per Se,
Because It Violated Appellants Federal
Constitutional Right to a Trial By an
Impartial Jury
Appellant contends the trial courts failure to sequester the jury
constitutes structural error, and is reversible per se, because it resulted in a
complete deprivation of his federal constitutional right to trial by an impartial
jury. (Arizona v. Fulminante (1991) 499 U.S. 279, 309-311; see also People v.
Vasquez (2006) 39 Cal.4th 47, 69.) The media presence in appellants case
was overwhelming, even before the jury was empaneled. Each juror had been
exposed to the case through the media before voir dire, and it is unknown how
many encounters, inadvertent or otherwise, any seated juror may have had
with media coverage of the case during trial. As a result of the courts error
in failing to sequester the jury, appellants trial was rendered fundamentally
unfair, and reversal of his conviction is required.
196
VIII.
APPELLANTS CONSTITUTIONAL RIGHTS TO DUE
PROCESS, A FAIR TRIAL, AND A FAIR AND
IMPARTIAL JURY WERE VIOLATED BY THE TRIAL
COURTS REFUSAL TO EXCLUDE TELEVISION
CAMERAS FROM THE COURTROOM AND BY ITS
SUBSEQUENT FAILURE TO TAKE STEPS TO ENSURE
THAT APPELLANT WOULD RECEIVE A FAIR TRIAL
A. Introduction
After the court denied the defense motion to sequester the jury, the
defense requested the court to exclude television cameras from the courtroom,
or alternatively, to preclude television coverage of the testimony. The court
denied the request, and the trial was thereafter broadcast live to a worldwide
audience, both on television and through live streaming on various Internet
sites. The courts refusal to exclude television cameras from the courtroom
was erroneous, and its subsequent failure to insulate witnesses from the trial
testimony available through the media resulted in denying appellant his
federal constitutional rights to due process, a fair trial, and a fair and impartial
jury. The error requires reversal of appellants conviction.
B. A Defendant in a Criminal Proceeding Has a
Constitutional Right to Due Process and a Fair
Trial by an Impartial Jury

Appellant incorporates by reference herein, Argument VII-B-2, ante.
C. Relevant Procedural History
Appellant incorporates by reference herein, Argument VII-C, ante.
197
Immediately after the court denied the motion to sequester the jury,
defense counsel addressed the court. He stated that one of the problems
mentioned in the defense motion, was that with particular television
commentators and shows, panelists literally describe for the jurors what they
believe was believable about the testimony, what they believe was correct
about the court rulings. Defense counsel argued, That is one of the
problems with the media, having that quasi juror. Everyone is a juror in the
case, whether explaining what should be believed, what shouldnt be
believed. He stated that was a problem in the Anthony case, because the trial
was accessible to everyone. (5RT-BB-9.)
Defense counsel requested the court to reconsider its ruling allowing
cameras in the courtroom, or alternatively, to amend its ruling in some way to
prevent the commentary problem that arose in the Anthony case. (5RT-BB-
10.) He argued that perhaps testimony shouldnt be presented on camera.
(5RT-BB-11.) The court declined to amend its prior ruling, and explained:
The First Amendment is one of those cherished
fundamental constitutional rights in the United States that
includes the right to comment, whether one agrees or disagrees
with it.
Jurors are going to be told not to have any contact with
any type of reporting as to this case. The defense is skeptical of
the ability of an individual juror to follow that admonition. I
am not. I have more faith and more respect than perhaps others
do, and I am not going to tailor my rulings in any way to affect
the ability of individuals to comment on this case.
198
Yes, in all likelihood, there will be talking heads.
Frequently, talking heads are speaking through other body parts
other than their heads.
But the fact remains, it is for each individual to make up
his or her own mind as to the nature of what has transpired.
The jurors will do that based on the evidence. They will not
base it on what they may see or hear. So that is my point.
The concern has been be [sic] raised, and I am satisfied
at this point in time that is the proper course.
(5RT-BB11-BB12 [emphasis added].)
Pursuant to the motions of both parties, the court excluded all witnesses
from the courtroom. The court also ordered that the witnesses were
admonished not to discuss any aspects of the case with other witnesses, and
counsel have the responsibility to forward this admonition to their particular
witness. (8RT-2408.)
During the trial, on September 30, 2011, the court issued a gag order
that applied to all attorneys in the case as well as their staffs. It prohibited
them from commenting and editorializing, verbally or in writing, about any
aspect of the case, to anyone outside of their respective teams. (11RT-3456-
3457.)
D. Media Coverage of the Trial
Appellant incorporates by reference herein, Argument VII-D, ante.
199
E. Publicity of a Trial Can Result in Denial of a
Criminal Defendants Federal Constitutional
Right to Due Process and a Fair Trial
A criminal defendants Sixth Amendment right to a fair trial can
conflict with the First Amendment right to the freedom of the press. This is
especially true in high profile cases, due to the heightened media coverage
therein. The media, however, cannot exercise its First Amendment rights in
a manner that deprives a criminal defendant of his Fourteenth Amendment
right to due process and a fair trial. (Sheppard v. Maxwell, supra, 384 U.S.
333; Estes v. Texas (1965) 381 U.S. 532.)
In Estes v. Texas, supra, 381 U.S. 532, the defendants case received
national notoriety due to pretrial publicity. During a pretrial hearing, the
defense brought a motion to prohibit telecasting, radio broadcasting, and news
photography of the proceedings, as well as a motion to continue the trial.
During the hearing, the courtroom was overrun with cameramen and their
equipment, and witnesses as well as summoned jurors were televised. At trial,
the judge restricted the telecasting to certain periods, with exclusions, and also
restricted the physical activity of the cameramen. (Id. at pp. 536-538.) On
appeal, the defendant contended his Fourteenth Amendment right to due
process had been violated by the broadcasting and televising of his trial. (Id.
at pp. 535-536.)
The Estes court discussed the impact of televised proceedings, and
200
stated:
The quality of the testimony in criminal trials will often
be impaired. The impact upon a witness of the knowledge that
he is being viewed by a vast audience is simply incalculable.
Some may be demoralized and frightened, some cocky and
given to overstatement; memories may falter, as with anyone
speaking publicly, and accuracy of statement may be severely
undermined. Embarrassment may impede the search for the
truth, as may a natural tendency toward overdramatization.
Furthermore, inquisitive strangers and cranks might approach
witnesses on the street with jibes, advice or demands for
explanation of testimony. There is little wonder that the
defendant cannot prove the existence of such factors. Yet we
all know from experience that they exist.
(Id. at p. 547.)

The high court held the defendants constitutional right to due process
had been violated, and it found the error to be reversible per se. (Id. at p.
552.) It explained its decision as follows:
As Mr. Justice Holmes said in Patterson v. Colorado,
205 U.S. 454, 462 (1907):
The theory of our system is that the conclusions to be
reached in a case will be induced only by evidence and
argument in open court, and not by any outside influence,
whether of private talk or public print.
It is said that the ever-advancing techniques of public
communication and the adjustment of the public to its presence
may bring about a change in the effect of telecasting upon the
fairness of criminal trials. But we are not dealing here with
future developments in the field of electronics. Our judgment
cannot be rested on the hypothesis of tomorrow but must take
the facts as they are presented today.
(Id. at pp. 552-553.)
201
The following year, the high court issued its opinion in Sheppard v.
Maxwell, supra, 384 U.S. 333. It reversed the defendants second degree
murder conviction because of prejudice incurred from pretrial publicity. The
court stated:
From the cases coming here we note that unfair and
prejudicial news comment on pending trials has become
increasingly prevalent. Due process requires that the accused
receive a trial by an impartial jury free from outside influences.
Given the pervasiveness of modern communications and the
difficulty of effacing prejudicial publicity from the minds of the
jurors, the trial courts must take strong measures to ensure that
the balance is never weighed against the accused. And
appellate tribunals have the duty to make an independent
evaluation of the circumstances.
(Id. at p. 362.)
F. The Trial Court Committed Reversible Error
By Denying the Defense Motion to Exclude
Television Cameras From the Courtroom and
By Thereafter Failing to Take Steps to
Guarantee That Appellant Would Receive a
Fair Trial
Although the trial court recognized the importance of the First
Amendment, it did not assess, or even discuss, whether the exercise of that
right, by allowing media organizations to televise the trial proceedings to a
worldwide audience, would interfere with appellants constitutional right to
due process and a fair trial. Regardless, once the trial court declined to
sequester the jury, and allowed the proceedings to be televised, it was required
to take steps to ensure appellant would receive a fair trial. (Sheppard v.
202
Maxwell, supra, 384 U.S. at pp. 358-362.) Here it failed to do so.
In denying the defense request to exclude television cameras from the
courtroom, the court noted it would be admonishing the jury to have no
contact with any reporting on the case. It thereafter admonished the jury, on
a daily basis, that they were prohibited from accessing or having contact with
any type of media about the trial. (See Argument VII-E, ante.) And, as
previously discussed herein, witnesses were excluded from the courtroom
proceedings on the motions of both parties. The trial court, however, made
a critical error by failing to insulate witnesses from the testimony of the other
trial witnesses, that was available on television, the Internet, and from other
sources. The court did not even admonish the parties to advise their own
witnesses that they were precluded from watching or listening to the
proceedings. Although the court issued a gag order as to the attorneys in the
case, and their staffs, it did not issue an order precluding the trial witnesses
from giving interviews to the press during the course of trial.
As the United States Supreme Court noted in Sheppard v. Maxwell,
supra:
. . . the court should have insulated the witnesses. All of the
newspapers and radio stations apparently interviewed
prospective witnesses at will, and in many instances disclosed
their testimony. A typical example was the publication of
numerous statements by Susan Hayes, before her appearance in
court, regarding her love affair with Sheppard. Although the
witnesses were barred from the courtroom during the trial the
full verbatim testimony was available to them in the press. This
203
completely nullified the judges imposition of the rule. See
Estes v. Texas, supra, at 547.
(384 U.S. at p. 359.)
In appellants case, it is clear the media coverage of the proceedings
impacted the fundamental fairness of appellants trial. Several witnesses gave
interviews during the course of the trial. The record indicates prosecution
witness Stacey Ruggles, an employee of appellant, gave multiple interviews,
including one to the Today Show, during trial. (13RT-3914.) One of the
prosecutors voiced her concern, and indicated she would admonish Ruggles
not to discuss the case with anyone, including the media, once Ruggles
concluded her testimony. The other prosecutor inquired whether the court
would so admonish the witness. The court declined to do so, stating, I
admonish the witnesses they are not to discuss their testimony or the facts of
the case with other witnesses. I have not admonished witnesses about
discussing matters with others. (13RT-3916.) The prosecutor asked if
Ruggles would be an extension of appellant since she worked for him. The
court responded it was very different from its authority over counsel, and
stated it would only be giving her the general admonition. (Ibid.)
Some of the defense witnesses also gave interviews during the course
of the trial. Three former patients of appellant, who testified at trial, were
interviewed by CNN prior to their trial testimony. (25RT-8433, 8451.)
204
Even more important was the fact it was apparent that witnesses were
watching the proceedings on television, prior to their testimony. Coroner
investigation Fleak admitted she had been watching the trial, but not every
day, or in detail or regularly. (15RT-4544, 4588.) Jacksons personal
assistant, Williams, was asked whether he heard the audio of Jackson that was
played during the trial. After he responded in the affirmative, he was asked
who played it for him. Williams testified, I actually heard it. I was told I
wasnt supposed to watch it on TV, but I did see it on the news. (9RT-2874.)
Although most witnesses were not asked, during their testimony, whether they
had been watching the proceedings on television, it is likely that many, if not
most of them, were doing so, because they had not been so restricted, and they
clearly had an interest in the proceedings.
A somewhat strange incident occurred on November 1, 2011. During
the morning break in the jury room, Juror No. 7 accessed the e-mail on her cell
phone, and found an e-mail received at 10:15 a.m., when the jury was still in
the courtroom. The juror brought it to the attention of the court. She had
buzzed the court, Because I received an e-mail whom I dont know belongs
to. And they stated something about being my teammate on the jury and want
to know what was happening. (29RT-9681-9682.) For an undisclosed
reason, the bailiff thought the sender was a foreign tabloid website, who had
an office in Los Angeles. (29RT-9677.)
205
As discussed in Argument VII-F, ante, it was unlikely the
nonsequestered jurors would have been able to avoid all contact with the
media during the six week trial.
Based on all of the incidents described above, it is evident the media
coverage of the case severely impacted appellants constitutional right to a fair
trial. Forty-nine witnesses testified during trial, and the extent to which their
testimony was tainted or otherwise impacted by the televised proceedings
cannot be ascertained. Further, the impact on the jurors remains unknown.
G. The Courts Error In Denying the Defense
Motion to Exclude Television Cameras From
the Courtroom Is Reversible Per Se Because It
Violated Appellants Federal Constitutional
Right to Due Process and a Fair Trial
In People v. Famalaro (2012) 52 Cal.4th 1, 33, the California Supreme
Court stated:
The United States Supreme Court has presumed
prejudicial violations of due process in cases where the
influence of the media was so pervasive as to render the trial
a hollow formality, conducted in a circus atmosphere or
in a courthouse given over to accommodate the public appetite
for carnival. (Murphy v. Florida (1975) 421 U.S. 794, 799,
quoting Rideau v. Louisiana (1963) 373 U.S. 723 [parallel and
remaining citations omitted].)
Although appellants case was not conducted in a circus-like
environment, the case was televised to a worldwide audience in a digital era.
The trial courts failure to insulate the witnesses from such pervasive media
206
rendered the trial fundamentally unfair, as it completely deprived appellant of
his constitutional right to due process and a fair trial by an impartial jury. As
such it constitutes structural error, and is reversible per se. (Arizona v.
Fulminante, supra, 499 U.S. 279, 309-311.) Accordingly, appellants
conviction must be reversed.
207
IX.
THE TRIAL COURT ABUSED ITS DISCRETION BY
IMPOSING AN AGGRAVATED SENTENCE BECAUSE
IT IS NOT SUPPORTED BY A CONSIDERATION OF
ALL RELEVANT SENTENCING FACTORS, THE
JUDGE DISPLAYED A BIAS AGAINST APPELLANT,
AND THE SENTENCE DOES NOT BEST SERVE THE
INTERESTS OF JUSTICE
A. Introduction
On November 29, 2011, appellant was sentenced to the upper term of
four years. (SCT-187; 30RT-11748.) Despite the fact the probation officer
recommended a midterm sentence, the trial court imposed the aggravated
term. (12CT-2811.) The sentence was rather shocking because appellant was
an established and well-respected cardiologist, he had no prior criminal
history, he was eligible for probation, and he had made significant
contributions to society by offering his services as a physician - without pay -
to a very poor segment of the population.
The trial court abused its discretion by imposing an aggravated
sentence, because it was not supported by all relevant sentencing factors, the
judge displayed a bias against appellant and engaged in speculation, and the
sentence does not best serve the interests of justice. The sentence should be
vacated, and the matter remanded for resentencing.
B. Applicable Sentencing Law
Pursuant to Penal Code section 193, subdivision (b), Involuntary
208
manslaughter is punishable by imprisonment pursuant to subdivision (h) of
Section 1170 for two, three, or four years.
Penal Code section 1170, subdivision (b), provides in relevant part:
When a judgment of imprisonment is to be imposed and
the statute specifies three possible terms, the choice of the
appropriate term shall rest within the sound discretion of the
court. . . . In determining the appropriate term, the court may
consider the record in the case, the probation officers report,
other reports, . . . , and statements in aggravation or mitigation
submitted by the prosecution, the defendant, or the victim, or
the family of the victim if the victim is deceased, and any
further evidence introduced at the sentencing hearing. The court
shall select the term which, in the courts discretion, best serves
the interests of justice. . . .
Circumstances in aggravation are set forth in California Rules of Court,
rule 4.421, and circumstances in mitigation are set forth in rule 4.423. The
presence of one aggravating factor is legally sufficient to support an upper
term sentence. (People v. Black (2007) 41 Cal.4th 799, 813; People v.
Osband (1996) 13 Cal.4th 622, 728.) However, the federal Constitution
permits the trial court to rely upon any number of aggravating circumstances
in exercising its discretion to select the appropriate term by balancing
aggravating and mitigating factors. (People v. Black, supra, at p. 813.)
The general objectives of sentencing, set forth in California Rules of
Court, rule 4.410, include protecting society, punishing the defendant,
encouraging the defendant to lead a law-abiding life and deterring him from
future criminality, deterring others from criminal conduct, preventing the
209
defendant from committing new crimes by isolation for a period of
incarceration, securing victim restitution, and achieving sentencing
uniformity.
Any exercise of sentencing discretion must be an intensely fact-bound
inquiry taking all relevant factors, including the defendants criminal past and
public safety, into due consideration; and the record must so reflect. (People
v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 981-982.) A court abuses
its sentencing discretion if it relies upon circumstances that are not relevant
to the decision or that otherwise constitute an improper basis for decision.
(People v. Sandoval (2007) 41 Cal.4th 825, 847.)
On appeal, the court reviews a sentence under the deferential abuse of
discretion standard. (Ibid; People v. Superior Court (Alvarez), supra, 14
Cal.4th at pp. 976-977.)

C. The Probation Officers Report
The probation officers report was filed on the day of sentencing.
(12CT-2793-2814.) It repeatedly states, In accordance with court orders, the
defendant in this case has not been interviewed. (12CT-2804-2807.) The
jury reached its verdict on November 7, 2011, and the minute order directed
the clerk to order a post-sentencing probation report. (12CT-2647.) The
court, however, did not issue an order prohibiting the probation department
from interviewing appellant. (20RT-10501-10520.) Other than the probation
40
Appellants counsel has been unable to locate any such order.
210
report, the entire record through the day of sentencing does not contain or
reference any court order prohibiting the probation officer from interviewing
appellant.
On February 24, 2012, at a hearing on a post-judgment motion, defense
counsel asked if the court had issued an order prohibiting probation from
interviewing appellant. The court replied it had not, but stated, As a matter
of practice the L.A. Superior Court has an appropriate call with the probation
department wherein the defendants are not interviewed unless theres a
specific request to the contrary, and absent a request, an interview is not
conducted. The court believed such a general order had been issued by the
supervising judge.
40
(1ART-302-303.)
Since appellant was not interviewed, the probation report essentially
reflects the prosecutions perspective of the case, including appellants police
statement. The probation officer contacted investigating officer Smith, and
obtained information from the prosecutors office, including a written
assessment of Jacksons death by Shafer, which was submitted to
discovery and examined in the trail [sic]. (12CT-2794, 2807.)
The probation officer found that because appellants conviction
precluded him from practicing medicine, he would not likely present an
immediate threat to the community. (12CT-2807.) He concluded the
41
The memorandum does not identify the interviews.
211
evidence supported a finding appellant administered a lethal dose of
propofol, failed to monitor Jackson, and withheld information from medical
personnel. (12CT-2807, 2809-2810.) According to the officer, Jacksons
demands for propofol did not minimize appellants culpability, because
medication should only be administered in appropriate response to medical
needs. He concluded Jacksons death resulted from a series of negligent
actions by appellant, constituting egregious deviations from the standard of
care. A probation recommendation was precluded by defendants extreme,
criminal negligence which resulted in the death of the victim and immense
suffering for the victims children, family, and the community. (12CT-2810.)
The probation officer found two aggravating circumstances: appellant
took advantage of a position of public trust or confidence to commit the
offense; and (2) the victim was particularly vulnerable. The absence of a
criminal record was the sole mitigating circumstance. The probation
recommendation was to deny probation, and impose a midterm prison
sentence. (12CT-2810-2811.)
D. The Prosecution Sentencing Memorandum
The memorandum notes appellant did not testify, but participated in
media interviews both before and during trial, and each time clearly stated he
was not responsible for Jacksons death.
41
Exhibit A includes five clips
212
containing appellants statements from interviews. The memorandum states:
Specifically, the defendant, when asked if he felt guilty
that Michael Jackson had died, stated I dont feel guilty
because I did not do anything wrong. (Exh. A, clip 1). Then,
when asked if it was reckless to abandon Michael by leaving
him alone in the room, the defendant responded no, no. (Exh.
A, clip 2).
During his media interview, the defendant goes on to
explain his lies to the police by saying that he never mentioned
being on multiple phone calls because the police never asked
me and he (the defendant) did not think it was important.
(Exh. A, clip 3).
Finally, the defendant consistently blames the victim for
his own death, even going so far as to characterize himself (the
defendant) as being entrapped by the victim (Exh. A, clip 4),
and as someone who suffered a betrayal at the hands of the
victim. (Exh. A, clip 5).
(12CT-2676.)
The prosecution believed there were four aggravating factors: the
crime involved great violence, great bodily harm, threat of great bodily harm,
or other acts disclosing a high degree of cruelty, viciousness or callousness;
the manner in which the crime was carried out indicates planning,
sophistication or professionalism; and, the two aggravating factors cited by the
probation officer. It requested imposition of the four year upper term.
(12CT-2677-2679.)
E. The Defense Sentencing Memorandum
The defense filed an extensive sentencing memorandum, with exhibits
213
that include appellants curriculum vitae and many letters written in his
support. It contended that based on appellants background and character, a
grant of probation was appropriate. (12CT-2685-2791.)
Appellant had been a practicing physician for over 20 years, with a
specialization in cardiology. He came from humble origins in the West
Indies, and grew up in a home without electricity or indoor plumbing.
(12CT-2686.) Appellant was able to overcome poverty and inordinately
difficult obstacles to achieve his goal of becoming a doctor. (12CT-2726.)
He established a clinic in memory of his late father in the impoverished
Acres Homes neighborhood of Houston, Texas. The majority of patients
lacked the ability to pay for cardiological care; it was essentially a pro bono
clinic. (12CT-2686.) Appellant traveled extensively to Trinidad where he
lived as a youth, in order to treat indigent people who otherwise would never
have seen a cardiologist. He led a useful and extraordinarily productive life
that has provided succor and healing to many people and their families.
(12CT-2727.)
The memorandum states:
Upon becoming a physician, Dr. Murray did not forget
where he came from. He devoted an enormous amount of time
and energy to give back to the community; his contributions are
described in the appended letters. A great number of people
have benefitted from Dr. Murrays generosity and good works.
It seems reasonable that the transgression for which he is to be
judged should be viewed within the context of the larger life of
which it is a part.
214
(12CT-2686-2687.)
The defense contended appellant is not a violent or dangerous offender,
and under the new sentencing law he should not be incarcerated. Appellant
had remained free on bond and complied with all conditions for two years
before his conviction, and he could be adequately supervised on probation.
He possesses skills that could be utilized in performing community service.
This was a very unusual case where the traditional aims of sentencing could
be addressed by a grant of probation with appropriate terms and conditions.
(12CT-2687-2688.)
The memorandum discusses factors in California Rules of Court, rule
4.414, as well as those characterized as aggravating factors by the probation
officer and prosecution. As to the nature and seriousness of the offense,
compared to other instances of the same crime - appellant considered Jackson
to be a close friend as well as a patient, and there was no malice or mens rea
involved. With regard to the victims vulnerability, the memorandum states:
Mr. Jackson was a talented, successful, world-renowned
entertainer with a large retinue of attorneys, business advisors,
security personnel and assistants. While there may have been
a history of abusing prescription medications on Mr. Jacksons
part, this was largely concealed from Dr. Murray at the time.
(12CT-2691-2692.)
The offense involved appellant acting as a physician treating his
patient, and appellants tendency to trust Jackson without sufficient
215
skepticism suggests the very opposite of criminal sophistication or
professionalism. (12CT-2692.) While acknowledging appellant held a
position of trust, the defense contended appellant did not intentionally
exploit his position in committing the offense. He was extremely
sorrowful about Jacksons death. The offense was committed because of
unusual circumstances, with virtually no chance of recurrence in that
appellants medical license had been suspended. (12CT-2687, 2692-2694.)
The defense contended appellant could educate and counsel patients
about heart care and disease prevention, if ordered to perform community
service. The court was urged to consider all of appellants contributions, and
place appellant on probation with a substantial community service
requirement. (12CT-2728-2729.)
F. The Probation and Sentencing Hearing
Each party presented a position consistent with its sentencing
memorandum. The prosecutor essentially characterized appellants post-
crime behavior as a coverup. (30RT-11714.) He argued appellants
priorities were highlighted by appellant talking on the phone to a girlfriend
while Michael Jackson is either dead or lay dying. (30RT-11720.) The
prosecutor argued an aggravated sentence was warranted because all of
appellants acts show repeated negligence. (30RT-11722.) He noted that
when appellant was interviewed for a documentary nine days before the
216
verdict, appellant denied doing anything wrong. (30RT-11725.)
Defense counsel acknowledged what occurred was a tragedy, and
certainly demands punishment. (30RT-11731.) He stated:
I do wonder, though, to what extent the court considers
the entirety of a mans book of life as opposed to just one
chapter. The two months that Dr. Murray was treating Michael
Jackson, he did so, regrettably. He shouldnt have done it.
But when we talk about vulnerability, we are going to be
honest about vulnerability, Michael Jackson was a drug seeker
and he sought it out from Dr. Murray who was wrong in
providing it. He sought it out from other doctors.
He was a powerful, famous, wealthy individual, with
lawyers, security, and staff, and advisers. . . .
But what about before those two months? . . . What
about that life?
* * *
A 58-year-old cardiologist who now . . . resides in . . . [a]
cell. . . . he is not a danger to the community, . . .
But what about the rest of his life? What about before
Michael Jackson asked for propofol? . . . He was 56 years in
June of 2009. .. . He never committed a crime. . . . He had
raised a family.
. . . [Appellant] has a kid in college, two more in high school.
he has a two-and-a-half year old . . .
. . . does any of that matter when you make your determination?
(30RT-11731-11732.)
Defense counsel reiterated that appellants career as a doctor had
217
ended. He argued that regardless of what appellant does with the rest of his
life, he is still going to be the man that killed Michael Jackson.
(30RT-11733.) Counsel contended that what should matter is what appellant
has done in his life. He concluded that if probation was granted, appellant
could do positive things for the community, incarcerating appellant was not
in the best interests of the community, and the court should consider the
entirety of the defense sentencing memorandum. (30RT-11734-11735.)
The court issued a lengthy statement prior to imposing sentence. It
acknowledged appellant had not acted intentionally in causing Jacksons
death. (30RT-11736.) Although it was impressed by submissions from
appellants family, friends and associates, in looking at appellants book of
life, the chapter that stood out was the one involving appellants treatment of
Jackson. (30RT-11739-11740.)
The court was offended by circumstances in the case. It stated:
Of everything I heard and saw during the course of the trial,
one aspect of the evidence stands out the most and that is the
surreptitious recording of Michael Jackson by his trusted
doctor. And I have repeatedly asked myself, why did this
happen and for what reason. And I can speculate and surmise
that there might have been some justifiable reason, some benefit
to Michael Jackson. That would be an entirely unreasonable
conclusion.
The tape recording was Dr. Murrays insurance policy.
It was designed to record his patient surreptitiously at that
patients most vulnerable point. I cant even imagine that
happening to any of us because of the horrific violation of trust.
218
(30RT-11741-11742 [emphasis added].)
The court referenced this faux documentary wherein appellant stated,
I dont feel guilty. I wasnt reckless. I didnt tell them about propofol
because they never asked the question, and it wasnt important. It stated,
And where Dr. Murray at that point says he feels betrayed and entrapped by
Michael Jackson. Yipes. Talk about blaming the victim. (30RT-11743-
11744.)
The court indicated it could not place someone on probation when that
person does not acknowledge responsibility. (30RT-11744.) It stated that
anyone taking an objective view would have to conclude appellant abandoned
his patient. It found this was an unacceptable, egregious series of departures
from the appropriate standard of care which undermine the physician-patient
relationship and which are a disgrace to the medical profession. (30RT-
11745.)
The court determined the high term of four years was the appropriate
sentence, and stated the following reasons:
. . . I find that Dr. Murray abandoned his patient who was
trusting him. His patient was vulnerable under those
circumstances, having been administered potentially dangerous
drugs by his medical provider. Dr. Murrays course of conduct
extended over a period of time. Dr. Murray repeatedly lied,
engaged in deceitful misconduct, and endeavored to cover up
his transgressions. He violated the trust of the medical
community, of his colleagues, and of his patient. And he has
absolutely no sense of remorse, absolutely no sense of fault, and
219
is and remains dangerous.
. . . The fact remains Dr. Murray is offended by that patient
dying, and I dont have any idea what will prompt Dr. Murray
to do or not do something in the future that may be dangerous
to a patient.
If he does practice medicine in the United States or even
elsewhere, I think Dr. Murray is so reckless, . . . that I believe
he is a danger to the community.
I have taken into account all of the factors. I have stated
my reasons. And those reasons, the nature and character of the
offense, distinguish this charge of involuntary manslaughter in
this case and this conviction of involuntary [sic] in this case
from other cases involving involuntary manslaughter.
. . . It should be made very clear that experimental medicine is
not going to be tolerated, and Mr. Jackson was an experiment.
The fact that he participated in it does not excuse or lessen the
blame of Dr. Murray, who simply could have walked away and
said, No, as countless others did.
Dr. Murray was intrigued by the prospect, and he
engaged in this money for medicine madness that is simply not
going to be tolerated by me.
(30RT-11746-11748.)
G. The Trial Court Abused Its Discretion by
Imposing an Upper Term Sentence
Although the probation officer recommended a midterm sentence, the
court adopted the prosecutors position and imposed the aggravated term.
Appellant acknowledges a trial court is not required to adopt a favorable
recommendation in a probation report, which is merely advisory and rendered
to assist the court in determining an appropriate disposition. (People v.
220
Warner (1978) 20 Cal.3d 678, 683; People v. Delson (1984) 161 Cal.App.3d
56, 63.) Here however, the upper term sentence is not supported by a
consideration of all relevant sentencing factors, nor is it in the best interests
of the public.
Appellant was a respected physician who made significant
contributions to society. The fact he opened a clinic in a poor Houston
neighborhood and treated people who could not afford a physician speaks
volumes about his character. He never forgot his roots, traveling back to
Trinidad where he was raised, to provide free medical services for those who
could not pay. Although the court claimed it had looked at the entirety of
appellants life, it apparently found that the two-month period he treated
Jackson served to eradicate all of the good appellant had previously done.
The court concluded Jacksons death did not result from an isolated
incident, but instead from a series of decisions made by appellant, which it
characterized as a cycle of horrible medicine, the practice of propofol for
medicine madness. (30RT-11739-11740.) Appellant, however, said he
administered nightly propofol infusions to Jackson for approximately two
months, up until three days prior to Jacksons death, and Jackson tolerated it
well. (11CT-2459-2462.) There was no evidence Jackson had previously
suffered any adverse reactions to propofol. Further, no evidence even
suggested appellant had not stayed and monitored Jackson whenever he
221
placed Jackson on a propofol drip. During the approximate two month period
appellant was caring for Jackson in Los Angeles, he spent the nights at
Jacksons home, and thus he was presumably monitoring Jackson on those
occasions. (9RT-2786; 13RT-3968-3970.) Jackson did not die as a result of
the nightly propofol infusions he received for two months prior to his death.
Even though appellants act of administering propofol infusions to Jackson
in a home setting without certain equipment may have resulted in deviations
from the standard of care, said acts cannot properly be found to comprise
causative factors in Jacksons death.
As discussed in Argument I, ante, appellant contends the evidence
failed to establish Jackson was on a propofol infusion on June 25th, and
instead, it merely shows Jackson was on a saline drip. There is no medical
necessity whatsoever to monitor a patient who is only on a saline drip, and
therefore appellant was not criminally negligent for leaving Jackson
unmonitored on June 25th once the sedative effects of the 25-milligram dose
of propofol had dissipated.
The court and prosecution emphasized appellant had not acknowledged
his wrongdoing with regard to Jacksons death. Appellant always maintained
he administered only a single 25-milligram dose of propofol to Jackson on
June 25th, and he did so slowly, over three to five minutes. The experts at
trial all agreed 25-milligrams of propofol is a small dose. It is considered
222
minimal sedation, not expected to cause complications, and any sedative
effects would dissipate within seven to ten minutes. (12RT-3625-3627, 3655;
18RT-5491; 27RT-9031-9032, 9034.) If appellant had only given Jackson a
single 25-milligram dose at 10:40 a.m., well over a hour before he discovered
Jackson with no signs of life, then he should not be expected to accept
responsibility for Jacksons death.
Although the probation officer concluded the evidence did not support
a finding Jackson self-administered propofol (12CT-2809), the medical
examiner testified a scenario where Jackson self-administered propofol
seemed less reasonable than one where appellant gave Jackson a little bit of
propofol from time to time to keep him asleep. The medical examiner did not,
however, testify such a scenario would not be a reasonable one. (17RT- 5197,
5267.)
The court characterized some of appellants actions as deceptive and
self-serving. It found appellant lied to the pharmacist, Jacksons staff and
professional associates, paramedics, UCLA medical personnel, and law
enforcement, and that he had attempted to destroy evidence. (30RT-11739-
11740.) What the court considered to be lies, deception, and self-serving acts,
may actually have been, at least in part, appellant acting to protect the privacy
interests of his patient. It is true appellant did not disclose to medical
personnel the fact he administered propofol to Jackson on June 25th. Based
223
on the short half-life of propofol, there was no need for appellant to make
such a disclosure. As noted by Cooper, if she had known about the 25-
milligram propofol dose given to Jackson around 10:40 a.m., it would not
have made any difference in the treatment rendered to Jackson because
Jackson died long before he became a patient at UCLA. (12RT-3635.) The
defense contended Jackson died quickly following cardiac arrest, so disclosing
to the paramedics or anyone that he had given Jackson propofol would not
have made any difference whatsoever.
Two days after Jacksons death, appellant came forward to law
enforcement on his own volition, and submitted to a lengthy interview. He
answered all questions asked, and based upon information provided,
additional evidence was recovered at Carolwood, including appellants bags.
The fact appellant did not mention his phone calls cannot be deemed a glaring
omission, as the prosecution contended (30RT-11714), because appellant was
answering the detectives questions, rather than making a statement. The
same holds true with regard to other things not stated by appellant during said
interview, which took place at the beginning of the investigation. During trial,
the prosecutor acknowledged the interview was incomplete, the detectives
lacked medical sophistication, and they probably did not ask the proper
follow-up questions. (29A-RT-9971.)
Appellant disagrees that his treatment of Jackson was experimental
42
A study published in 2010 entitled, Propofol Induced Sleep
Efficacy and Safety in Patients with Refractory Chronic Primary Insomnia,
had an almost 100 percent success rate using propofol. The article indicates
propofol works for insomnia, and refractory chronic primary insomnia.
(18RT-5496-5498.)
224
medicine. Steinberg acknowledged that on occasion, doctors will use a drug
for an off-label purpose, and sometimes such use becomes the norm in later
years. (18RT-5545-5546.) White explained an off-label use is not illegal.
Instead, it means an approved drug is being used for a disease process or
disorder not currently indicated on the package insert. He noted physicians
will often use drugs for off-label purposes. FDA approval in terms of dosing,
indication, and type of treatment is required before a particular use of a drug
is included on its label. White testified the use of propofol for sleep, outside
an ICU unit, would be considered an off-label use.
42
(26RT-8903.)
Propofol is not an experimental drug. In 1989 it received FDA
approval for use in general anesthesia, and it later became approved for
sedation. (19RT-5820-5821; 26RT-8862, 8897-8898, 8901.) Propofol is not
a controlled substance. (13RT-4044-4045.) The use of propofol in a home
setting is not listed as a contraindication on the FDA product insert. (See
defense Exhibit .)
Propofol is used for procedural or conscious sedation, and appellant
was certified in conscious sedation. (12RT-3622-3623; 27RT-9038, 9043;
Exh. HHHH.) Appellant told the police he would typically give Jackson 50-
43
Consideration of appellants statements to the media might be
construed as a violation of Canon 3B (7) of the California Code of Judicial
Ethics, which provides in part: Unless otherwise authorized by law, a judge
shall not independently investigate facts in a proceeding and shall consider
only the evidence presented or facts that may be properly judicially noticed.
This prohibition extends to information available in all media, including
electronic.
225
milligrams of propofol, followed by a slow drip, so Jackson would continue
to sleep. (11CT-2482-2483.) There was no evidence appellant ever
administered doses of propofol to Jackson that would have placed him under
deep, or anesthetic levels of sedation.
The court referenced the documentary mentioned by the prosecutor in
his remarks to the court. (30RT-11743.) The prosecutions sentencing
memorandum noted, but did not identify, the fact appellant gave several
interviews before and during trial. Although the memorandum included five
clips as exhibits, it does not identify the interview(s) from which they were
taken. Appellant asserts it was improper for the court to consider edited
isolated remarks he made during said interviews that were not part of the
record. The submitted clips also appear to lack foundation.
43
The court
should not have given any weight to comments appellant may have made to
the media, when he exercised his right to remain silent at trial, and he was not
interviewed by the probation officer pursuant to a purported court order.
The court found one aspect of the evidence that stood out the most
was the iTalk recording of Jackson, which it characterized as appellants
44
The content of the recording is included in the Statement of Facts,
ante, pp. 30-32.
226
insurance policy. It concluded the recording was designed to record his
patient surreptitiously at that patients most vulnerable point, and constituted
a horrific violation of trust. (30RT-11741-11742.) This conclusion was
based on pure speculation rather than on any facts or evidence.
During trial, the iPhone recording of Jackson was played.
44
(14RT-4279.) The evidence established the recording was made on
appellants iPhone on May 10th at 9:05 a.m. Nothing else is known about the
recording - such as why it was recorded, whether it was intentionally or
accidentally recorded, or even whether it was recorded at Jacksons request.
In the prosecutors closing argument, he referred to the recording and stated,
you hear the tragic, sad voice of Michael Jackson in some sort of drug-
induced slurred stupor. And you hear the voice of Conrad Murray evidently
seated right there as he recorded the conversation, excuse me, the voice of
Michael Jackson. (29A-RT-9961-9962.)
It is unknown if Jackson was on a propofol drip when the recording
was made. If it is assumed he was, it would actually demonstrate Jackson was
receiving propofol safely at a minimal sedation level, in that he was talking,
he was not in distress, and he was peaceful as he continued to talk while he
drifted off to sleep.
227
The courts finding that appellant was reckless and a danger to the
community is completely unsupported by the record. Although appellant
admitted placing Jackson on nightly propofol drips for two months prior to
Jacksons death, he stayed and monitored him throughout the infusions, and
there was no evidence Jackson suffered any adverse consequences from them.
Appellant had no prior criminal history, and no evidence was presented that
established, or even suggested, that appellant had ever intentionally or
knowingly caused harm to any individual.
Appellant was convicted of a nonviolent felony involving criminal
negligence, rather than malice or an intent to harm or injure anyone. The
offense arose out of facts resulting from an unusual situation, comprised of
appellants close friendship with Jackson, and a desire to help him through a
difficult situation. Appellant practiced medicine for over 20 years, and spent
a considerable amount of time doing philanthropic work. (12CT-2686, 2727.)
Since his medical licenses have been suspended, and he can no longer practice
medicine and prescribe or administer drugs, he poses absolutely no danger to
the community. (12CT-2692.) A Los Angeles Times article, dated November
11, 2011, quoted Sheriff Baca as stating, The chances of him [appellant]
being a problem behaviorally or a threat to society is nonexistent.
(12CT-2688.)
Based on the foregoing discussion, and considering the entire content
228
of appellants sentencing memorandum, and all evidence presented at trial and
the sentencing hearing, it is clear the trial court abused its discretion by
imposing the aggravated term. It appears that due to the publicity surrounding
the case, and the fact the victim was one of the most famous people in the
world, the court was trying to make an example out of appellant. In doing so,
it failed to make an individualized consideration of the offense, the offender,
and the public interest. It engaged in speculation, disregarded important
facts, and displayed a bias against appellant. The courts sentencing decision
constituted an abuse of discretion that violated appellants constitutional right
to due process. Accordingly, the sentence must be vacated, and the matter
remanded for a new sentencing hearing, with directions to the trial court to
consider all relevant sentencing factors, and impose either a low or midterm
sentence. (Farrow v. United States (9th Cir. 1988) 580 F.2d 1339, 1359;
United States. v. Safirstein (9th Cir.1987) 827 F.2d 1380, 1387.)
229
X.
APPELLANTS CONVICTION MUST BE REVERSED
BASED ON THE CUMULATIVE ERRORS OF THE
TRIAL COURT WHICH UNDERMINED THE
FUNDAMENTAL FAIRNESS OF APPELLANTS TRIAL
IN VIOLATION OF HIS FIFTH, SIXTH AND
FOURTEENTH AMENDMENT CONSTITUTIONAL
RIGHTS
If this court determines the errors raised in Arguments II through VIII
are individually harmless, then appellants convictions should be reversed
because the combined effect of the errors resulted in denying appellant his
federal constitutional rights to due process and a fair trial. It has long been
recognized the cumulative effect of individual errors may rise to a level of
prejudice requiring reversal. (See e.g., People v. Ramos (1982) 30 Cal.3d
553, reversed on other grounds in California v. Ramos (1983) 463 U.S. 992;
People v. Vindiola (1979) 96 Cal.App.3d 370, 388.)
Cumulative errors may so infect the trial with unfairness as to make
the resulting conviction a denial of due process. (Donnelly v. DeChristoforo
(1974) 416 U.S. 637.) Moreover, when errors of federal constitutional
magnitude combine with nonconstitutional errors, all errors should be
reviewed under a harmless error standard. (People v. Williams (1971) 22
Cal.App.3d 34, 58-59.)
Here the trial court erroneously excluded evidence critical to the
defense (Arguments IV-VI); it denied appellant an opportunity to forensically
230
test evidence that may have proved to be exculpatory (Argument II); appellant
was denied his constitutional right to effective assistance of counsel
(Argument III); and appellants right to a fair trial by an impartial jury was a
violated (Arguments VII, VIII). The cumulative effect of the errors resulted
in denying appellant his federal constitutional rights to due process and a fair
trial. (U.S. Const., 5th, 14th Amends.)
As discussed in several of the arguments herein, this was a close case,
and appellant was prejudiced by the errors. Taken together, these errors
undoubtedly produced a fundamentally unfair trial setting, and a new trial is
required. (See Lincoln v. Sunn (9th Cir. 1987) 807 F.2d 805, 814, fn. 6;
Derden v. McNeel (5th Cir. 1992) 978 F.2d 1453; cf. Taylor v. Kennedy
(1978) 436 U.S. 478.)
231
CONCLUSION
Based on all of the foregoing reasons, reversal of appellants
conviction is required. If appellants conviction is affirmed, the upper term
sentence should be vacated, and the matter remanded for resentencing.
DATED: April , 2013 Respectfully submitted,

Valerie G. Wass
Attorney for Appellant
Conrad Robert Murray
232
CERTIFICATE OF APPELLATE COUNSEL PURSUANT TO
CALIFORNIA RULES OF COURT, RULE 8.360 (b)
I, Valerie G. Wass, hereby certify, pursuant to California Rules of Court, rule
8.360 (b), that I prepared the foregoing Opening Brief on behalf of my client, and that
the word count generated for this brief is 50,985, which does not include the cover,
Table of Contents, Table or Authorities, or this Certificate.
I declare under penalty of perjury that the foregoing is true and correct.
Dated: April 22, 2013

Valerie G. Wass
PROOF OF SERVICE BY MAIL

I, Jody K. Berglund, declare as follows:
I am over eighteen (18) years of age and not a party to the within action. My
business address is 556 S. Fair Oaks Ave., Suite 9, Pasadena, California, 91105. I
served a copy of the attached: APPELLANTS OPENING BRIEF, Court of Appeal
Case No. B233677, on each of the following, by placing a true copy thereof in a
sealed envelope with postage fully prepaid, in the United States mail at Glendale,
California, addressed as follows:
Victoria B. Wilson Edward Chernoff
Supervising Deputy Attorney General Chernoff Law
300 South Spring St., Ste. 1702 927 Franklin Street, Suite 600
Los Angeles, CA 90013 Houston, TX 77002
Deborah Brazil Nareg Gourjian
Deputy District Attorney Gourjian Law Group
210 West Temple Street, #18000 101 N. Brand Blvd., Suite 120
Los Angeles, CA 90086-0164 Glendale, CA 91203
Honorable Michael Pastor J. Michael Flanagan
C.S.F. Criminal Justice Center Flanagan, Unger, Grover & McCool
210 West Temple Street 1156 N. Brand Boulevard
Los Angeles, CA 90012 Glendale, CA 91202
Conrad R. Murray, #2926725
Los Angeles County Jail
Post Office Box 86164
Los Angeles, CA 90086-0164
Each said envelope was then, on April 22, 2013, sealed and deposited in the
United States mail at Glendale, California, in the County of Los Angeles in which I
am employed. I declare, under penalty of perjury of the laws of the State of
California, that the foregoing is true and correct, and that this Declaration was
executed this 22nd day of April, 2013, at Pasadena, California.

Jody K. Berglund

Conrad Murray Appeal 04/22/13

Uploaded by

Document Information

Copyright

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Conrad Murray Appeal 04/22/13

Uploaded by

Copyright:

IN THE COURT OF APPEAL OF THE STATE CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION SEVEN

administered the lorazepam, he stated, It was IV pushed slowly. When

PROOF OF SERVICE BY MAIL

You might also like