Untouchable

by Randall Sullivan

  The defense attorney’s brief moment in the sun was swiftly clouded over by the appearance on the witness stand of Dr. Christopher Rogers, the medical examiner who had performed the autopsy on Michael Jackson. Dr. Murray’s own words led him to rule out the possibility that Michael Jackson had given himself a lethal dose of propofol, Rogers explained: The two-minute bathroom break that Murray claimed was his only absence from his patient’s bedside was simply not a long enough time for any propofol Mr. Jackson might have self-administered to take effect. The more likely scenario, the medical examiner testified, was that Dr. Murray had mistakenly administered a much larger dose of propofol than he realized, one that was lethal to his patient. And anyway, even if Michael Jackson had himself taken the fatal dose of propofol, Rogers added, the cause of death would remain, in the judgment of the coroner’s office, an unsatisfactory standard of care by his doctor.

  Jurors were shown an autopsy photo of Michael Jackson’s body (a fuzzily gruesome image that somehow made its way to TMZ) as Dr. Rogers reiterated the results of his report: Though Michael Jackson was quite slender, his weight was in the normal range and he was actually in above average health for a man of fifty; he could have lived for decades longer with proper care.

  Rogers was followed to the stand by two more physicians, a cardiologist and a critical care specialist, both of whom told the jury that Dr. Murray’s treatment of Michael Jackson violated the standard of care. After them came the prosecution’s final and most important witness, Dr. Steven Shafer, a professor of anesthesiology at Columbia University. Shafer made it clear that he did not believe Conrad Murray had given Michael Jackson only 25 milligrams of propofol on the morning of his death. For one thing, the orders of propofol that Murray had placed with his pharmaceutical supply company in Las Vegas were “an extraordinary amount to purchase to administer to a single individual,” Shafer told the jury. His calculations showed that the more than four gallons of Diprivan shipped to Los Angeles at Dr. Murray’s request averaged out to nearly 2,000 milligrams per day, nearly fifty times the amount that Murray said was the largest daily dose of propofol that he ever gave Michael Jackson. The only plausible scenario of Mr. Jackson’s death, in his expert opinion, Shafer said, was that Dr. Murray had used an entire 1,000-milligram bottle of Diprivan to begin the drip into Michael Jackson’s veins, and had somehow managed to leave the drug running into Mr. Jackson’s bloodstream even after his heart had stopped beating.

  Shafer then listed a dozen “egregious” violations of the standard of care by Dr. Murray—actions that posed a foreseeable danger to his patient’s life. “Each one, individually, could be expected to lead to a catastrophic outcome, including death?” David Walgren asked. “Absolutely,” Shafer answered.

  Chernoff attempted an aggressive cross-examination, forcing Dr. Shafer to acknowledge that he could not be absolutely certain that Michael Jackson hadn’t awakened and with his own hand removed the clamp on the IV line that had stopped the propofol drip. Such a scenario, however, was “in no way exculpatory,” Shafer added, because it meant that Dr. Murray had set up the IV drip of a dangerous drug and left his patient alone with it. Even if Murray had done what his attorney was suggesting, “it would still be considered abandonment.”

  Without Arnold Klein, Tohme Tohme, and the rest of the cast of excluded characters, the defense case amounted to little more than quibbling. A records custodian for the Beverly Hills police department was summoned to testify that the 911 call from Michael Jackson’s home had been delayed by forty-six seconds because it was routed through her agency before reaching the city’s fire department. A pair of LAPD detectives acknowledged that Alberto Alvarez had only mentioned key details about Dr. Murray’s attempted cover-up two months after Michael Jackson’s death, and that Alvarez made two separate drawings of the IV bag in which he said the propofol was stashed, a year and a half apart, which were “significantly different.”

  Unable to compel Dr. Klein’s appearance on the witness stand, Murray’s defense lawyers settled for Dr. Allan Metzger, who was called to testify that, during an April 18, 2009, meeting at the Carolwood chateau, Michael Jackson had complained of chronic insomnia and asked for “some form of anesthetic.” Under cross-examination by Walgren, though, Metzger said he advised Michael against using anesthesia to combat insomnia, warning that intravenous administration of such drugs outside a hospital setting was dangerous. Was there “any amount of money” that would have persuaded him to give Jackson propofol at his home? Walgren asked Metzger. “Definitely not!” Metzger answered. Even those who doubted Dr. Metzger on this last point understood that he had been a far better witness for the prosecution than for the defense.

  The same was essentially true of Cherilyn Lee. The nurse’s story of Michael’s pleas for Diprivan ended as it had every time she told it—with her at once refusing and warning him that the drug was dangerous. The prosecution had already made the point that Michael Jackson believed his risk was nullified by having a doctor attending to him.

  In the end, Murray’s defense team decided that it had little choice but to prosecute Katherine Jackson’s lawsuit against AEG. As the Jackson family looked on in undisguised anticipation, Ed Chernoff proposed to introduce the contract for the O2 shows as evidence of the pressure that Michael Jackson was under to perform. A man already $400 million in debt, Chernoff explained to the judge, would have been required to pay AEG at least $30 million if he was unable to deliver as expected in London; the stress of his situation gradually drove the entertainer to inject himself with a lethal dose of propofol in a desperate attempt to sleep between rehearsals. Judge Pastor had already ruled that the defense would not be permitted to introduce evidence of Jackson’s financial circumstances, and prosecutor Walgren urged a similar ruling on the contract. “At every turn,” Walgren told Pastor, “Conrad Murray, through his attorneys, have (sic) put the blame for his failures on Michael Jackson and this is just another attempt to do the same.”

  The judge agreed. “This is not a contractual dispute,” Pastor told Chernoff. “This is a homicide case.”

  The defense responded by summoning Randy Phillips to the stand, a decision that accomplished little more than to provide AEG with one more opportunity to defend itself against Mrs. Jackson’s civil suit. “Motivated, energized, and receptive” was how Phillips described the Michael Jackson he had encountered in the autumn of 2008, when they first met to begin planning the O2 shows. And it was absolutely untrue, Phillips said, that Michael had been “forced” by AEG into agreeing to perform at more than ten shows. Thirty-one shows were planned from the start, Phillips testified, and Michael agreed to nineteen more concerts “in twenty minutes.”

  The judge rebuffed Chernoff’s attempt to use this testimony to get the contract into evidence, creating a strange moment of theater in which the Jackson family were openly supporting the attorney for the man accused of killing Michael. As Katherin Jackson observed the judge’s ruling with an expression of dismay, Joe snorted his indignation. Janet Jackson rolled her eyes and shook her head.

  The Jacksons were whispering among themselves with infuriated expressions as Phillips continued with his testimony, explaining that while he was concerned by his star’s absence from rehearsals for the O2 shows, “no one on our end was ever contemplating pulling the plug.” After Kenny Ortega sent Michael home from the June 19 rehearsal, Phillips said, he was reassured by what Conrad Murray had to say at the meeting the next day, when the doctor “guaranteed us that Michael would get into it.”

  The Jacksons were still shaking their heads when Phillips added that after the very last rehearsal on the evening of June 24, Michael had thanked him for the help in getting this far, then added, “Now I’m ready. I can take it from here.”

  Chernoff eked out a moment of minor triumph from Phillips’s appearance as a witness: After the AEG Live chief made several references to the contractual obligations of both sides for the O2 shows, Judge Pastor permitted the defense attorney to ask if Mich
ael Jackson was “ultimately responsible” for the production costs of the concerts. “Yes,” Phillips replied. Chernoff seemed to sense an opening when Phillips denied that there was ever any thought of canceling the O2 concerts, but admitted that Michael Jackson’s problems with “focusing” might have resulted in further delays.

  “At some point the shows could have been postponed to the point that production would not be possible?” Chernoff asked.

  “I can’t speculate on that,” a poker-faced Phillips answered.

  By then, Conrad Murray’s hopes for a hung jury were reduced to a series of patients called as character witnesses and two physicians who would try to cancel out the testimony of Dr. Steven Shafer. The former patients at least offered a portrait of Conrad Murray that was very different from the one created by the public record. “That man right there is the best doctor I’ve ever seen,” said an elderly gentleman who had been treated for a heart condition in 2002. “I’m alive today because of that man.” Another patient described appointments with Murray that lasted more than four hours, recalling that after each one the doctor had phoned his wife to explain his condition. An eighty-two-year-old woman named Ruby Mosley told the jury that if Dr. Murray had been greedy, he never would have set up a clinic in Houston’s Acres Homes neighborhood, where three-quarters of the population lived in poverty. David Walgren countered by establishing that when his patients in Houston were sedated prior to a procedure performed by Dr. Murray, this had taken place in hospital settings where there was monitoring equipment and backup personnel.

  The first of the defense’s expert witnesses was Dr. Robert Waldman, a specialist in medical addiction who testified that Michael Jackson had “probably” been turned into a Demerol addict by Dr. Arnold Klein. He had consulted with dermatologists who told him that shots of Botox and Restylane were not so painful that a patient needed Demerol, Waldman said, then told the jury that his examination of Dr. Klein’s medical records suggested Michael Jackson was getting as much as 375 milligrams of Demerol in a ninety-minute period, more than seven times the recommended dose. Walgren then asked the defense’s doctor: “If a patient asks you to administer a dangerous drug, a drug that could be harmful . . . would you refuse to administer that drug to the patient?”

  “Absolutely,” Waldman answered.

  The appearance of the defense’s second expert and final witness, Dr. Paul White, provided the most enlivening moments of the entire trial. White, it turned out, had been one of Steven Shafer’s medical school professors and later a personal friend. He was not speaking highly of his former student these days, however. “I am going to take the high road, not the low road with him,” E! Online had quoted White saying of Shafer, whom he had reportedly called “a scumbag” for ridiculing his calculation of probabilities in the Conrad Murray case.

  Judge Pastor insisted upon chiding the witness prior to his testimony, lecturing the doctor at length about why he had “no business making any of those comments.” White then denied calling Shafer a scumbag, but Pastor announced anyway that he was scheduling a hearing after the trial to determine whether the doctor should be held in contempt of court.

  Dr. White appeared determined to impress the viewing public. After presenting his credentials as an anesthesiologist who had conducted clinical trials of propofol back in the 1980s that had led to FDA approval of the drug, White took issue with the math models Shafer had used to show that Dr. Murray might have given Michael Jackson more than forty times the dosage of propofol that the doctor claimed. The problem with such models, White sniffed, was that while they might describe the general population, they were not applicable to “a specific or particular individual.” Michael Jackson was obviously an exceptional person who had consumed prodigious amounts of drugs long before Conrad Murray became his physician. His tolerances were most unusual. Furthermore, the amount of propofol found in Jackson’s bloodstream during his autopsy clearly contradicted Dr. Shafer’s theory that Dr. Murray had left the propofol drip running until there were as many as 1,000 milligrams of the drug in Michael Jackson’s bloodstream. Dr. Shafer had called White’s self-injection hypothesis a “crazy scenario.” His former professor returned the favor by describing Shafer’s theory as “underdeveloped.”

  His own review of the circumstances of Mr. Jackson’s death, in light of the entertainer’s background and other factors, Dr. White said, suggested to him that the entertainer had probably inadvertently ended his own life by injecting himself with a dose of propofol while his doctor was distracted by phone calls and not keeping a close eye on him.

  The most significant moment of White’s testimony might have come when the defense used him to acknowledge that it would not be challenging the claim that Dr. Conrad Murray had violated the standard of care, but rather simply arguing that this violation was not severe enough to warrant a manslaughter conviction. “Let’s deal with the elephant in the room here,” Chernoff’s associate counsel J. Michael Flanagan told Dr. White. “Conrad Murray has been accused of infusing a dose of propofol and leaving his patient. Can you justify that?”

  “Absolutely not,” answered White. Nevertheless, other than his failure to remain alert at Michael Jackson’s bedside, nothing else about the way Dr. Murray had dealt with the patient was to his mind improper, White said. He was, for example, not at all certain that adminstering propofol as an insomnia treatment was unreasonable, said White, citing a Chinese study of using the anesthesia to help people with sleep disorders that had produced some flawed but “very interesting” results. And while he agreed with prosecution witnesses that Michael Jackson had swallowed at least several tablets of lorazepam—Ativan—White said, he did not at all agree that combining the sedative with the anesthetic propofol had created the “perfect storm” that killed Mr. Jackson. Would the drugs Dr. Murray admitted administering to Jackson—relatively light injections of sedatives followed by a half-dose of propofol—have created “a dangerous situation?” Flanagan asked. “Not at all,” White told him.

  By the time the prosecution took over questioning, White seemed to be enjoying himself on the witness stand. He was amused that both Flanagan and Judge Pastor had repeatedly referred to him as “Dr. Shafer,” and suggested in an aside to the jury, “I should get a name tag.” Pastor and Walgren were each visibly furious with White a few minutes into his cross-examination, but the doctor himself appeared nonchalant. The prosecution had begun by attempting to elicit Dr. White’s admission that propofol was a potentially life-threatening drug. “Without careful bedside monitoring, it could be dangerous,” White allowed.

  “Could it result in death?” Walgren asked.

  “If the infusion somehow came opened up widely . . . certainly you could achieve a significant effect that could result in cardiopulmonary arrest,” White replied.

  Clearly irritated by the answer, Walgren demanded to know if Dr. White had ever administered propofol in someone’s bedroom. “No, I have not,” White answered.

  “Had you ever heard of someone doing that prior to this case?” Walgren asked.

  “No, I had not,” White said.

  Walgren’s satisfied nod turned into head-shaking incredulity only seconds later, though, when Dr. White said he was not inclined to criticize Dr. Murray for letting twenty minutes pass between the time he noticed that Michael Jackson was not breathing and the time of the call to 911. Yes, he personally would have called sooner for an ambulance, White said, but Dr. Murray “reacted as many physicians would.”

  By his own admission, Dr. Murray was holding a cell phone in his hand, Walgren noted: “Are you saying he wasn’t capable of pressing 911?” White shrugged at the question and told the prosecutor that Michael Jackson would have died that day no matter what time the ambulance arrived.

  The exchange between the prosecutor and the witness became truly testy when White began to make reference to information he had gleaned from “two extensive conversations” with Dr. Murray. Judge Pastor had ruled prior to White’s testimony tha
t he would not be allowed to mention his conversations with Murray. “Please listen carefully to the prosecutor’s questions,” Pastor told White the first time the witness mentioned his conversations with Dr. Murray. When White made another reference to his conversations with Murray just moments later, the judge sent the jurors out of the courtroom.

  Walgren was indignant, protesting that the witness was intentionally dropping mentions of his conversations with Conrad Murray in front of the jurors, in direct defiance of the judge’s ruling. Flanagan countered that Dr. White couldn’t be expected to specifically remember what information he had ascertained from Dr. Murray’s police interview and what information had come from his meetings with the doctor. “Nice try,” Pastor told the defense attorney. “This is so obvious . . . He’s trying at every juncture to add in other material. It’s deliberate. I don’t like it. It’s not going to happen again.” Dr. White would face a second charge of contempt at his hearing on November 16, the judge ruled.

  White’s self-confidence did not seem seriously shaken. When the jury returned, Walgren asked if Conrad Murray had violated the physician’s oath of “First, do no harm.”

  “I think he was providing a service to Mr. Jackson, which Mr. Jackson had requested, in fact insisted upon,” White replied. When Walgren seized upon the word “service,” White amended his answer: “Well, ‘medical care’ is a better word than ‘service.’”