Articles Posted in Trials Across The U.S.

With the recent case of Kerry Kennedy’s DWAI arrest so prominently in the news, and the allegation that her motor vehicle accident with a tractor trailer on I-684 was due to her taking an Ambien prior to the accident and falling asleep at the wheel, I read an interesting case out of Santa Clara, California this week. 45 year old ex-convict Kevin Robertson was arrested and charged with driving under the influence and resisting arrest in connection with a June 20, 2012 non-injury car accident in which he claims to have taken an Ambien to help him sleep, eaten dinner, laid down, and then woke up shackled to a chair in the police department. Tests showed no alcohol in Robertson’s blood, but due to a series of health problems, he was taking Morphine, Benadryl and Ambien, all of which were found in his blood.

Robertson’s lawyer employed the “Ambien defense”, also known as the “Zombie defense”, which has apparently been utilized in courts throughout the United States, with uneven results. In 2007, the FDA issued a warning that Ambien, along with twelve other insomnia medications, could cause “complex sleep-related behaviors”, including “sleep driving.” Sleep driving is defined as “driving while not fully awake after ingestion of a sedative hypnotic, with no memory of the event”. The agency also indicated that these behaviors could include making phone calls, preparing food and eating while asleep.

In Robertson’s case, the defense was quite successful, in that after a four day trial, the jury took less than one hour to acquit him of the charges. However, since Robertson was on parole, his problems weren’t quite over, since he could have been assessed 6 months in jail by the parole commissioner for a violation of the terms of his sentence. Fortunately for Mr. Robertson, the Santa Clara police and other witnesses failed to show up at his hearing, and the parole board commissioner dismissed the matter in eight minutes.

In 2009, the Ambien defense led to the acquittal of a Fresno, California resident who killed the mother of 11 in a fatal car crash, and two years previously, a judge determined that a Massachusetts attorney was not guilty in a sleep driving accident in which a man was killed. More recently, in San Antonio, Texas, flight attendant Julie Ann Bronson was charged in a DWI case in which she drank 5 or 6 glasses of wine, took Ambien, and then “sleep drove” her Mercedes convertible into a car occupied by a mother and her two children, one of whom was an 18 month old girl, who was severely injured in the accident. Bronson pled guilty and was sentenced by the jury (as permitted under Texas law) to only 10 years probation, when she could have faced as much as ten years behind bars. The presiding judge added on a six month jail term as part of the probation, believing that the sentence was too lenient.

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In the aftermath of the Conrad Murray guilty verdict of involuntary manslaughter and his sentencing on November 29, 2011, there is no question that the prosecution was handed some enormous breaks which do not normally occur in a criminal case. Further, in my opinion, the prosecution of Dr. Murray, while warranted, completely obscured the issue of significant drug addiction in an effort to assess blame for Jackson’s untimely death.

Without question, Dr. Murray provided the prosecution with the basis for a case against him when he voluntarily chose to speak with the police immediately after the singer died on June 25, 2009 and acknowledged having administered propofol to Jackson in the hours leading up to his death. Under normal circumstances, had Murray consulted an attorney first, no defense attorney would have permitted unrepresented questioning of their client which was designed to, and did, obtain damaging admissions by Murray which were used by the prosecution at trial. Compare this with the murder trial of O.J. Simpson, who immediately “lawyered up” after he was accused of the murders of his wife Nicole Brown-Simpson and her friend Ronald Goldman. We all know how that original criminal trial against Simpson ended up, despite a mountain of evidence against him.

What has been obscured in the successful effort to convict Dr. Murray for Jackson’s death is that Michael Jackson was addicted to numerous medications for a substantial period of time, and certainly was given propofol by several doctors, not just Dr. Murray, in the months prior to his death. When one doctor would stop giving Jackson his “milk” as he called it, the singer would simply find another target to obtain this powerful anesthetic. Thus, perhaps Dr. Murray should have had some co-defendants in this case, and possibly, as Dr. Murray claimed but could not prove, Jackson himself administered the fatal dose that June day.

I am in no way excusing Dr. Murray’s conduct, and he certainly was guilty of gross medical malpractice in administering propofol in a non-hospital setting, without monitoring equipment, and leaving the bedroom to go to the bathroom or call his girlfriend, whatever the truth is regarding leaving Jackson unattended. Further, Dr. Murray is guilty as charged for violating his oath to do no harm, and from the start should have resisted the temptation, however enticing, to be paid $150,000 per month as Jackson’s enabler for serious drugs and anesthesia. Dr. Murray deserves to lose his license to practice medicine, period. But to suggest that Jackson bore no responsibility for his own death in light of the evidence of his widespread and longstanding drug addiction, including addiction to painkillers, psychotropic medications and anti-depressants, is a little hard to accept.

There are many similarities to the case of Elvis Presley’s doctor George Nichopoulos, (who issued 10,000 prescriptions to Presley in the first eight months of 1977 before Presley died) who was charged, but not convicted, in August of 1977 when Presley reportedly died of cardiac arrest, but in reality died of a drug overdose. At autopsy, Presley’s blood contained the painkillers Morphine and Demerol, Chloropheniramine, an antihistamine, the tranquilizers Placidyl and Valium, and Codeine, Ethinamate, (prescribed at the time as a “sleeping pill”, Quaaludes, and a barbiturate. If Murray had not admitted to the administration of propofol shortly after Jackson died, he might have ended up as Nichopoulos did, charged but never convicted, even though his license to practice medicine would be gone.

Dr. Murray also made the colossal error, almost beyond conception, of baring his true feelings about the charges against him in a shockingly inadvisable interview with NBC conducted prior to the conclusion of the trial but aired after the verdict. In the interview with Samantha Guthrie of NBC, a former prosecutor herself, Dr. Murray had the very poor sense to utter these words: “I don’t feel guilty because I did not do anything wrong.” Firstly, if his attorneys had any idea that Dr. Murray was planning on being interviewed BEFORE SENTENCING, they should have absolutely forbidden him to do so, and I have to assume that the interview was granted against their strong objections. The statements by Dr. Murray, mentioned over and over by the prosecution during sentencing on November 29, 2011, caused Judge Michael Pastor to castigate Murray for a full 27 minutes, which I would surmise was by far his longest statement during a sentencing in his entire judicial career. Pastor was clearly seething as he pronounced Dr. Murray a continuing danger to society, practicing “experimental medicine” and “money for medicine madness.” The judge continued his diatribe, stating that Murray showed no remorse, and flatly rejected a request by Murray’s defense team for probation rather than incarceration with these words: “Why give probation to someone who is offended by the whole idea that that person is even before the Court?”

Due to overcrowding in the California prison system, Dr. Murray will likely serve a fraction of the 4 year maximum sentence he was assessed. But his problems are just beginning. Dr. Murray will undoubtedly lose his license to practice medicine in Texas, Las Vegas, and California, and the Jackson family is reportedly seeking 100 million in compensatory damages.

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Dr. Conrad Murray, the 58 year old cardiologist who was convicted by a Los Angeles County jury this week of involuntary manslaughter in the June 25, 2009 death of Michael Jackson, will now face two additional cases in civil court. In September of 2010, Jackson’s mother Katherine Jackson filed a wrongful death lawsuit against the company AEG Live LLC, the promoter of the ill fated “This Is It” tour that Michael Jackson was rehearsing for when he died. Two months later, in November of 2010, the pop star’s father Joe Jackson filed a civil case against Dr. Murray for wrongful death.

The burden of proof in a criminal case is beyond a reasonable doubt, which is defined as “evidence to a moral certainty…” Reasonable doubt is “doubt based on reason and arising from evidence or lack of evidence, and it is doubt which a reasonable man or woman might entertain, not imagined doubt.” Conversely, in a civil case in which the plaintiff is suing for money damages, the burden of proof is known as “a preponderance of the evidence”, which is defined as: “Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it…that is, evidence which as a whole shows that the fact sought to be proved in more probable than not.” Essentially, preponderance of evidence means that the plaintiff must prove the case by evidence just over 50% to prevail, which is obviously a significantly easier burden than in a criminal case, in which the prosecution must prove that the defendant is guilty “beyond a moral certainty.”

Now that the criminal case has resulted in a finding that Dr. Conrad Murray is legally responsible for Michael Jackson’s death, this is a major advantage for the Jackson family in the civil suits, as the criminal conviction of Murray is certainly admissible in the civil trial against Dr. Murray, although it most likely would not be admissible in the civil case against AEG Live LLC, since the defendants are not the same in both cases as they will be in the civil case against Dr. Murray.

Even if Dr. Murray had prevailed in the manslaughter case, we all recall how O.J. Simpson was exonerated of killing his wife and Ronald Goldman in the murder case in October of 1995, and then found liable in the civil case (in a masterful performance by Goldman’s attorney’s Daniel Petrocelli) for 33 million dollars in February of 1997. Thus, a verdict of not guilty in a criminal case does not guarantee that a civil case will have the same favorable outcome. However, conversely, when a defendant is convicted in a criminal case of manslaughter, this is very strong evidence of liability in a subsequent wrongful death civil case for money damages.

Assessing these two cases individually, it is understandable why Katherine Jackson would want to proceed with a civil case against the promoter AEG, since they are undoubtedly seen as the prototypical “deep pocket” defendant who will either try to settle the case for a significant amount prior to trial or have sufficient insurance and or assets to pay a judgment should a Los Angeles County civil jury find AEG to be liable for the singer’s death. I reviewed the complaint for damages filed by Ms. Jackson on September 15, 2010 on behalf of her grandchildren Michael Joseph Jackson, Jr., Paris-Michael Katherine Jackson, and Michael Jackson II. In the 18 page complaint, Ms. Jackson, through her attorneys, has painted a picture of Michael Jackson having no free will, and being the prisoner of a contract with AEG in which in exchange for considerable advances for his contract with AEG to deliver concerts in the “This Is It” tour, they required him to utilize the services of an incompetent physician, Dr. Murray, whose main responsibility was to make sure that Jackson showed up at rehearsals. Further, the complaint contends that Jackson was warned to receive medications and drugs administered to him by Murray, and to discontinue any treatment from previous physicians including his friend and family doctor, Arnold Klein. To be frank, and having watched the movie “This Is It”, Jackson appears fully in control of everything that was going on, and in my opinion will be a hard sell to a jury to claim that AEG forced Michael Jackson to take drugs and use their alleged physician in order to appear for rehearsals. Why would AEG enter into a contract with Jackson if they were so concerned that he would not be physically able to perform the concerts?

In contrast, the case against Dr. Murray in light of the criminal verdict would appear much more solid. Dr. Murray was the person who obtained the propofol, who treated Jackson with this sedative for more than two months at the time of Jackson’s death, and knew or should have known that propofol should only be used in a hospital with the necessary personnel and equipment for such a powerful anesthetic drug. It is probable that a civil jury might also ascribe some or a significant amount of responsibility to Jackson himself, as he was clearly addicted to numerous drugs, and had utilized the services of several physicians prior to Dr. Murray to continue obtaining multiple prescriptions.

In either of the civil cases, there is also the question of what the actual damages are. In wrongful death cases, the elements of damage include the loss of parental support of the children, both emotional and financial. Thus, there would have to be an analysis of what Jackson’s earnings were at the time of his death, as well as his future earnings potential. There are also potential damages for Mr. or Ms. Jackson, if they could prove that Jackson was providing some financial support to them at the time of his death, but based on what appeared to be Jackson’s estrangement from his family at that time, this element of damages will likely not be substantiated.

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A Los Angeles jury found Dr. Conrad Murray guilty of involuntary manslaughter in the death of Michael Jackson on November 7, 2011. There were 22 days of testimony and 49 witnesses presented to the seven man and five woman jury. The jury deliberated for approximately 2 days before reaching their verdict. Dr. Murray, who is 58 years of age, faces a maximum of four years in prison and will lose his license to practice medicine in the State of California. It is unknown whether he will lose his license to practice medicine in Nevada, Hawaii, and Texas, but since he has now been convicted of a felony, it is likely that he will lose his license in those states as well.

The jury determined that Dr. Murray had been guilty of criminal negligence in providing Jackson with the powerful anesthetic propofol in an inappropriate setting, without the proper monitoring and resuscitative equipment available to be administering this medication normally used in surgical cases in a hospital setting. The prosecution argued that Murray was a greedy, incompetent doctor who was persuaded by a $150,000 monthly salary and the allure of being close with one of the world’s most well known entertainers. The defense had countered with the claim that Jackson was a well known drug addict who had in fact administered the fatal dose of propofol while Dr. Murray briefly left Jackson’s bedroom to use the bathroom, along with ingesting several pills of Lorazepam which Dr. Murray was unaware of.

The Los Angeles coroner ruled that Jackson’s death was caused by “acute propofol intoxication”, in conjunction with two other drugs, including Lorazepam. Dr. Murray certainly did not help his defense in speaking with Los Angeles police investigators two days after the June 25, 2009 death and acknowledging that at Jackson’s request, he had provided propofol to Jackson in his home for two months prior to his death. The most damming evidence against Dr. Murray was in all likelihood the fact that he did not have the proper resuscitative equipment, did not call 911 for twenty minutes (instead calling Jackson’s personal assistant first) and did not inform the 911 personnel that he had given Jackson propofol. He taped some of his conversations with Jackson when Jackson was under the influence of some sedative, which was a double edged sword. On the one hand, the tapes showed that Jackson was certainly complicit and actively requesting that Dr. Murray administer the propofol to help him fall asleep. On the other, the taped conversations raised questions as to Murray’s judgment in continuing to provide drugs which would cause Jackson to be incoherent and in need of serious help. Jackson apparently used the euphemism “milk” in repeatedly imploring Dr. Murray to give him propofol.

Dr. Murray’s counsel Ed Chernoff requested that Murray be allowed to remain free on $75,000 bail. However, Judge Michael Pastor noted that Murray was “now a felon convicted of homicide” and stated: “Dr. Murray’s’ reckless conduct in this case poses a demonstrable risk to the safety of the public”, in ordering that Murray be remanded to prison until his November 29, 2011 sentencing date.

With the overcrowding of the jails in the California penal system, with all non-violent inmates being transferred to county jail, it is unlikely that Murray will serve any significant time in prison, even if Judge Pastor does sentence him to the maximum of four years. For example, as was widely reported this week, Lindsay Lohan, who was sentenced to 30 days in jail on a probation violation, was brought to prison and then released the same day due to overcrowding. The more likely scenario is that Dr. Murray will end up serving one year of house arrest and no time in state prison.

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Last week, a 26 year old East Naples, Florida man was sentenced to life imprisonment for possession of child pornography. This has set off a debate among prosecutors, defense attorneys, law school professors, former judges and commentators: namely, does the punishment fit the crime? The background is that Daniel Enrique Guevara Vilca, a 26 year old stockroom employee with no prior criminal background, was found to have downloaded 300 sexually explicit photographs and 38 hours of child pornography on his home computer. He was charged with 454 counts of child pornography under Florida law, which makes possession of child pornography a third degree felony, punishable by up to five years in prison. However, since Mr. Vilca was charged with one count for each image he had stored on his computer, he faced more than 300 years in prison, with a minimum of 152 years in state prison.

Mr. Vilca was offered a plea deal of 25 years before trial. His sentence came after a guilty verdict was delivered by a six person jury on October 6, 2011. Mr. Vilca’s sentence was the harshest in the history of Collier County. Previously, one of the harshest sentences for this crime was in 2009, when Naples resident Douglas Deering received a 25 year sentence after pleading guilty to 197 child pornography possession counts.

Vilca’s defense lawyer Lee Hollander argued that people who create child pornography or have been convicted of child molestation do not receive sentences as harsh as his client, and noted: The guy is doing life in prison for looking at child porn. I’m sorry, but that just doesn’t compute. Daniel has nothing to do with the original victimization of these people; there is no evidence that he’s ever touched anybody improperly, adult or minor; and life in prison for looking at images, even child images, is beyond comprehension.” Tamara Rice Lave, an associate law professor at the University of Miami with expertise in sexual offender statutes, stated: I don’t think [possession of child pornography] should be the same as somebody who commits first degree murder or a string of violent crimes. Part of what the justice system needs to do is punish proportionality.” Douglas Berman, who has a sentencing blog and is a law professor from Ohio State University, noted that in the Vilca case there was a failure to distinguish between the viewers of child pornography and those who actually abuse children sexually, resulting in a “lack of nuance and proportionality that our law demands.”

Conversely, the prosecutor on the Vilca case, Steve Maresca opined that consumers of child pornography keep the market for child sexual abuse alive, and that the sentence sent a message that possession of child pornography is a serious crime, with the images on a computer lasting forever.

Mr. Hollander has indicated that he intends to appeal his client’s sentence, alleging that the sentence violates the 8th Amendment of the U.S. Constitution which prohibits cruel and inhuman punishment. Interestingly, Mr. Vilca could have received a lighter sentence if he had been sentenced under federal guidelines, with federal guidelines recommending a minimum of 57 to 71 months in prison for possession of 600 or more images of young children. Paul Cassell, a former federal judge and present University of Utah law professor stated that a “life sentence is what we give first degree murderers…and possession of child pornography is not the equivalent of first degree murder.”

In New York, under section 263.11 of the Penal Law, possession of an obscene sexual performance by a child is an E felony, punishable by up to four years in prison, 10 years probation, the requirement to register as a sexual offender under Megan’s Law, and fines of up to $5,000.00.

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The criminal trial of Houston, Texas cardiologist Dr. Conrad Murray, 58, began this week in Los Angeles Superior Court. Murray is charged with involuntary manslaughter in the June 25, 2009 death of the famed pop singer Michael Jackson, who died of cardiac arrest at the age of 50 after Dr. Murray administered the powerful sedative Dipravan, (more commonly known as “propofol”) to help Jackson sleep. Reportedly, Jackson referred to propofol as his “milk.”

Under the California Penal Code 192 (b) PC, involuntary manslaughter is defined as an unlawful killing that takes place:
1. during the commission of an unlawful act (not amounting to a felony), or

2. during the commission of a lawful act which involves a high risk of death or great bodily harm that is committed without due caution or circumspection.

Prosecutors started off the case with powerful evidence, including photographs of Jackson from June 24, 2009, during a rehearsal for Jackson’s tour “This Is It”, and a photograph from the following day, depicting Jackson’s lifeless body laying on a gurney. Additionally, the prosecution played a May 10, 2009 recorded message from Jackson (ironically, from Murray’s own cell phone—perhaps he was worried about future liability), in which an incoherent and obviously drugged Jackson discussed his excitement about the upcoming tour.

In opening statements on September 27, 2011, prosecutors claimed that Michael Jackson was abandoned by Dr. Murray after propofol was administered, with Ativan, Valium and Versed in his system, and that Murray “left this vulnerable man, without monitoring equipment, or resuscitative equipment…to fend for himself.”

One of Murray’s defense lawyers, Ed Chernoff, noted in his opening statement that Jackson had 8 Lorazepam (Ativan) pills in his system, “enough to put six of you to sleep”, that Jackson self administered an additional dose of propofol in a fit of frustration when Dr. Murray left the room, which created a “perfect storm in his body that killed him instantly.” Chernoff also continuously referred to what the “science will show you”, clearly in an effort to warn the jurors against deciding Murray’s fate solely on sympathy for Jackson rather than on the admissible evidence presented in Court.

Lorazepam (Ativan) is generally used to relive anxiety, and is in the class of medications known as benzodiazepines. It is generally not supposed to be taken more than 2-3 times per day, and is very addictive. Tolerance is known to develop with long term or excessive use, which it is fairly clear was the situation with Michael Jackson. Further, the literature for Lorazepam advises that the medication should not be taken for longer than 4 months at a time.

Prosecutors contend that Dr. Murray:

1. Gave Jackson propofol as a sleep aid (approximately 4 gallons over the last six weeks of Jackson’s life), knowing that the singer was taking several other sedatives including Valium, Ativan, and Versed;
2. Administered these sedatives without proper monitoring equipment and in a non- clinical environment, such as a hospital where Jackson’s vital signs could be monitored;
3. Was not sufficiently trained in the properties of the various medications that Jackson was taking, in that Dr. Murray is a cardiologist, not a anesthesiologist;
4. Abandoned Jackson by leaving the room to take personal phone calls and to go to the bathroom after he gave Jackson the dosage of propofol at 11:56 am on June 25, 2009;
5. Did not call for an ambulance until 12:20 PM, a full 24 minutes later, instead calling Jackson’s personal assistant at 12:13 PM and leaving a message “call me right away…[Jackson] suffered a bad reaction.”

6. When ambulance and emergency personnel arrived at the Jackson home, Dr. Murray allegedly did not inform them that he had administered propofol, nor that Jackson also had Ativan, Valium and Versed in his system.

Propofol is an anesthetic which is utilized to produce relaxation and sleep in surgical patients. It is also used for patients in intensive care and on a ventilator. Propofol is supposed to be infused into a vein at a hospital or clinic, and only by trained medical professionals. In the contraindications for this medication, patients are warned not to take propofol if they are also taking “barbiturates for sleep and seizures, medicines for depression, anxiety, or psychotic disturbances, or medicines for sleep.” This will be a difficult issue for Dr. Murray to overcome with a jury, in that he knew Jackson was taking a number of contraindicated medications which could negatively interact with the propofol.

Dr. Murray was reportedly being paid $150,000.00 monthly for his services as Jackson’s personal physician, and it is well known that Jackson had a proclivity for using numerous drugs to fight insomnia.

The defense claims that Michael Jackson was a drug addict who retained various doctors in an effort to provide him with a continuing supply of powerful medications and prescriptions. Further, because autopsy results indicated that there was a small amount of propofol in Jackson’s stomach contents, the defense contends that Jackson took some of the drug himself, which contributed to the fatal reaction. According to defense counsel, Jackson had a tremendous volume of benzodiazepines in his system, each of which could easily have caused Jackson’s cardiac arrest, alone or certainly in combination with the propofol.

If Dr. Murray is convicted of the involuntary manslaughter charges against him, he could face up to 4 years in prison. Under New York’s Penal Law, there is no specific charge of involuntary manslaughter, but rather, the equivalent charge is known as criminally negligent homicide pursuant to Section 125.10:

“A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.”

Criminal negligence is defined in Section 15:05 (4) of the New York Penal Law as:

“A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

Criminally negligent homicide in New York is an E felony, punishable by up to 4 years in prison. We will report further on the Murray criminal trial as the case proceeds for the next several weeks.

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