The preliminary hearing in Los Angeles County Superior Court will determine whether authorities have a strong-enough involuntary manslaughter case to try Dr. Conrad Murray, a cardiologist who has acknowledged administering a dangerous anesthetic blamed in Michael’s death.
Such hearings are typically pro forma proceedings in which homicide prosecutors call only a police detective and a coroner to relate the basic facts of the case.
But for Murray’s hearing, which is expected to unfold before a courtroom crowded with Michael’s relatives and fans as well as reporters, prosecutors have said they plan to call as many as 35 witnesses for testimony that will last at least two weeks.
Those summoned to the stand are expected to include medical experts and investigators as well as the security guards and staff who were around the doctor and his famous patient in the days and hours leading up to Michael’s death on June 25, 2009.
Prosecutors David Walgren and Deborah Brazil declined to discuss their reasons for such an involved preliminary hearing, but a spokeswoman for the district attorney’s office said it was necessary given the complexities of a case that took homicide detectives and prosecutors seven months to build.
We have to be able to prove the elements of the crime, and merely to call the coroner to say that a person died is not proving a crime,
said Sandi Gibbons, a spokeswoman for the Los Angeles County district attorney’s office.
Involuntary manslaughter refers to a killing done without malice. At trial, prosecutors would need to show that Murray caused Michael’s death either in the commission of a crime not rising to a felony or by acting “without due caution and circumspection.”
The level of proof required at a preliminary hearing — sufficient cause — is much lower than the beyond-a-reasonable-doubt standard required for a conviction. Prosecutors must demonstrate only enough evidence to lead a “person of ordinary caution or prudence” to have a “strong suspicion” the defendant is guilty.
A lawyer for Murray, Joseph Low IV, said that given the low bar, he would be surprised if Judge Michael Pastor did not order his client to trial.
I don’t anticipate this is the type of case that the D.A. won’t have facts to support the couple of elements necessary for this charge
But, he said, the extensive hearing had an upside for Murray’s defense: the opportunity to talk to prosecution witnesses, including the security guards and some investigators.
Cross-examination “is our first access to a lot of these individuals,” he said.
State law allows prosecutors to streamline preliminary hearings by having police officers summarize witness accounts, but former L.A. homicide prosecutor Truc Do said she was not surprised that prosecutors in such a high-profile case were opting for a “full-blown rather than bare-bones” hearing with dozens of live witnesses.
You want the opportunity to evaluate the strengths and weaknesses of your witnesses and to see how they do under cross-examination,
said Do, who prosecuted record producer Phil Spector for murder in the death of actress Lana Clarkson. She added that getting potentially skittish witnesses — such as those from Michael’s inner circle — under oath would be crucial in case they later fled the jurisdiction.
Much of the testimony is likely to concern Murray’s use of the powerful surgical anesthetic propofol to treat Michael’s chronic insomnia. The coroner listed the cause of death as “acute propofol intoxication.” Propofol is not approved for sleep disorders or home use, and the U.S. Food and Drug Administration says it is so dangerous that only a trained anesthesiologist should administer it.
Murray, 57, who faces up to four years in prison if convicted, has pleaded not guilty. He has said he gave Michael a small amount of propofol the morning of his death but said through his lawyers that it should not have caused death.
Low declined to elaborate on Murray’s defense, but comments at a hearing last week concerning scientific testing of evidence suggested the defense might argue that Michael injected himself with a large and ultimately fatal amount of propofol.
“I think it’s clear they’re operating under the theory that the victim in this case, Michael Jackson, killed himself,” prosecutor Walgren said.
A defense lawyer at the hearing, J. Michael Flanagan, would not say whether the prosecutor was correct, but he told the judge that the question of who injected the propofol was “the issue in the case.”
Defense attorney Ellyn Garofalo, who recently won acquittal for a physician charged with overprescribing drugs to Anna Nicole Smith, said the defense is wise to reveal as little as possible about its strategy at the preliminary hearing.
“Why let the prosecution see your witnesses? Why let them see your defense? Why educate them?” she said.
Low said the defense has a witness list but will not decide whether to use it until after the prosecution’s case is presented.