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The Thing Speaks for Itself: Conrad Murray Abandons and Switch Defense In Midstream

The Conrad Murray trial may resume on Wednesday October 19, 2011 after some down time. Testimony was suspended last Thursday afternoon to allow the prosecution’s anesthesiology expert to attend a medical convention, and again Monday because that witness’s father died.

Now in its fourth week, this quasi civil/ criminal trial is still expected to conclude with the start of jury deliberations next week.

Because it is an involuntary manslaughter case involving a doctor’s care of his patient, the prosecutor has had to show a breach in the standard of care and the breach was the cause in this case of the death of Michael Jackson.

The prosecution’s has introduce an abundance of evidence showing that Dr. Murray purchased Propofol and had it delivered to home of one of his girlfriends. The evidence also shows that Dr. Murray who in his own words left the room for two minutes, and failed to call 911 for nearly twenty minutes after finding Mr. Jackson unresponsive. During that time the testimony shows that Dr. Murray was trying to rid Mr. Jackson’s room of any evidence that Propofol was being used in a home setting without any monitoring devices and emergency equipment in case the inevitable were to occur. Further Dr. Murray did not maintain any medical records on his one patient who he was being paid $150,000.00 per month the care for. Further, Dr. Conrad did not tell the ER doctors that Propofol had been administered to Mr. Jackson.

Contrary to popular belief, the medical examiner testified that the 5’9″ 142 pounds Mr. Jackson was very healthy. Mr. Jackson had no plaque in his arteries, which is something that is unheard of for man 50 years of age.

There is an evidentiary concept known as res ipsa loquitur. The term allows negligence to be proven without the need for testimony from experts. “Res Ipsa Loquitur”, literally translated from Latin as “The Thing Itself Speaks” (often altered to ‘the thing speaks for itself”) refers to a negligence case where the facts are such that there is no need to further discuss them, only to determine that the defendant was the cause of the harm claimed by the plaintiff who has the burden of proof in civil cases. For example, if someone’s wedding ring is left inside the patient after surgery there is little else to be said, other than whose ring is it? The ring could only have gotten there as a result of someone’s negligence.

Res ipsa loquitur has been around as a legal concept since 1863 as a result of the English case of Byrne v. Boadle. In Byrne, an individual was killed by a barrel of flour that fell out of a warehouse window. Said the court:

The present case upon the evidence comes to this, a man is passing in front of the premises of a dealer in flour, and there falls down upon him a barrel of flour. I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had the control of it; and in my opinion the fact of its falling is prima facie evidence of negligence, and the plaintiff who was injured by it is not bound to show that it could not fall without negligence, but if there are any facts inconsistent with negligence it is for the defendant to prove them.

Three basic requirements must be satisfied before a court can submit the question of negligence to the jury under res ipsa loquitur.

1. Inference of Negligence: The plaintiff’s injury must be of a type that does not ordinarily occur unless someone has been negligent. The inference of negligence does not mean that all other possible causes of the injurious event must be eliminated. A plaintiff using res ipsa to enable the case to go to the jury must prove that the defendant’s negligence is the most probable cause of her injuries. The particular nature of the defendant’s negligence need not be pinpointed. For instance, where a bottle of soda explodes in a supermarket immediately after its delivery by the bottler, the injured person does not have to prove that the bottler failed to notice a defect in the bottle or that the soda was over-carbonated. It is sufficient to establish that the explosion would not have occurred unless the bottler had been negligent.

Where the inference of negligence depends upon facts beyond the common knowledge of jurors, EXPERT TESTIMONY is necessary to furnish this information. Such testimony is usually presented in cases of professional negligence, such as MEDICAL MALPRACTICE. An expert witness can testify directly in regard to the inferred fact itself, such as when the expert testifies that the plaintiff’s injury would not have occurred if the doctor had not been negligent.

2. Exclusive Control by the Defendant :The plaintiff’s injury or damage must have been caused by an instrumentality or condition that was within the exclusive control of the defendant. This application of the rule has been regarded as inflexible by many courts, since it severely restricts the type of case to which res ipsa can be applied. In response, many states prescribe that the negligence must occur while the defendant has control over the instrumentality. In the example of the exploding soda bottle, the negligence of the bottler occurred somewhere in the bottling process. The fact that the bottle was sitting on a supermarket shelf and was no longer in the immediate possession of the bottler does not prevent the reasonable conclusion that the injury resulted from the negligence of the bottler. The injured plaintiff must first show that the bottle was not cracked by mishandling after it left the plant of the bottler. This does not mean, however, that the plaintiff must account for every minute of the existence of the bottle from the time it left the plant. If the plaintiff can substantiate the fact of careful handling in general and the absence of unusual incidents, such as the deliberate tampering of the bottled goods by an unknown person, such facts would permit reasonable persons to conclude that the injury was more likely than not to have been caused by the defendant’s negligence while he had exclusive control of the bottle.

3. Freedom from Contributory Negligence :The event in question must not have been attributable to any cause for which the plaintiff is responsible. The plaintiff must not have done anything that significantly contributed to the accident that caused the injury. In one case, a water skier was injured when the propeller of the boat that had been towing him struck his arm as the boat was attempting to pick him up. He sued the driver and the owner of the boat for negligence, which could be found if res ipsa was applied. The plaintiff attempted to dive underwater when he saw the boat approaching him, but he was unsuccessful in escaping injury. The defendants claimed that the attempted dive caused the accident and, therefore, res ipsa was inapplicable.

The trial court accepted this argument, which was later rejected by the appellate court. The appellate court decided that the question of whether the attempted dive caused the accident should have been presented to the jury under res ipsa. It stated that a plaintiff may rely upon res ipsa loquitur even though he has participated in the events leading to the accident if the evidence excludes his conduct as the responsible cause. In light of the skier’s testimony that he was about to be struck by the boat, as well as the testimony of other eyewitnesses, the jury could logically conclude that the attempted dive was not a cause of the accident.

Res Ipsa Loquittar is only used in civil cases and is not extended to criminal cases.

The reasons why res ipsa loquitur is not used in criminal cases is conceptual. The doctrine res ipsa loquitur reverses the onus of proof: when an event has occurred of a kind which does not ordinarily occur without negligence, it is up to the defendant to show that the cause was something other than negligence. In American jurisprudence, the defendant is innocent until proven guilty, and the burden is on the prosecution to prove beyond a reasonable doubt the guilt of the defendant. The law does not allow any reversal of the onus of proof in criminal cases.

Further, because a lesser standard is utilized, a civil court may safely conclude that, on the balance of probabilities, negligence was causative of the loss.

Although the expression is only used in civil cases, the same process of reasoning can operate in criminal cases, when a jury is asked to draw conclusions from the established facts. In criminal cases, this is often called “inferential reasoning”, but it is (in substance) the same thing. An example of such are cases where defendants are tried for murder in the absence of corpus delicti (Latin meaning the body of the crime or body of evidence).

An Alva, Okla., jury deliberated two hours in September 2007 before convicting Katherine Rutan in the murder of her 6-year-old son, Logan Tucker. Prosecutors said Rutan killed her son on June 23, 2002, so she could be with her boyfriend. Key evidence included a boyfriend who testified that she told him she wished she could kill her children and get away with it. Rulan’s other son, Justin, told the jury that his mother took his brother into the woods and returned without him. She was sentenced to life in prison. See KATHERINE RUTAN a/k/a KATHERINE POLLARD, Appellant -vs- STATE OF OKLAHOMA 2009 OK CR 3; 202 P.3d 839; 2009 Okla. Crim.

So where a jury is considering whether a criminal offense was committed – even a criminal offense which involves an element of negligence, such as manslaughter – the onus always rests on the prosecution. However, the prosecution may discharge that onus by adducing evidence of facts from which an inference of negligence can be drawn; but, conceptually, that is somewhat different from reversing the onus of proof and requiring the defendant to establish that there was no negligence.

The question now, is whether the defense will attempt to rebutt this inference which has been laid out with perfection by the prosecution by attempting to show that Mr. Jackson contributed to his death by ingesting a fatal overdose of sedatives? Dr. Conrad Murray’s involuntary manslaughter trial has been put on hold at least until Wednesday October 19, 2011 to give the defense time to study new lab test results the prosecution contends show Michael Jackson did not ingest a fatal overdose of sedatives. The defense has already abandoned their theory that Mr. Jackson drank the Propofol which resulted in his death. This was done in the middle of the prosecution’s case. The defense now states that their testing on Beagle dogs on the effects of swallowing Propofol shows that such action would be “trivial”.

The defense is now claiming that Mr. Jackson died from Lorazepam which was detected in Jackson’s stomach contents after he died.

The Los Angeles County coroner tested Jackson’s stomach contents for the level of the sedative lorazepam last Wednesday at the request of the prosecution, Deputy District Attorney David Walgren revealed at a hearing Monday.

The testing was ordered after Murray’s defense contended that Jackson swallowed eight tablets of lorazepam, a sedative, in a desperate search for sleep the day he died.

The results show “a much smaller amount of lorazepam in the stomach that is totally inconsistent with oral consumption of lorazepam tablets,” Deputy District Attorney David Walgren said.

The coroner ruled that Jackson’s June 25, 2009, death was from “acute propofol intoxication” in combination with several sedatives, including lorazepam.

Prosecutor David Walgren is presenting his final expert Dr. Steven Shafer, an anesthesiology and pharmacologist who will resume his testimony on tomorrow.

The concept of the inference laid out by Mr. Walgren and the defense’s abandonment of their propofol swallowing defense was discussed recently by famed criminal defense attorney Penny Marshall and Dr. Robert L. Copeland on Sitting At The Lunch Counter on Febone1960.net. Take a listen to the two part series (part 1 & part 2) of this interesting discussion on the prosecution’s evidence in the Conrad Murray case.

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    Posted in Crime and Drugs and Febone1960.net and Howard University and Justice and Legal and Medical and Uncategorized 3 years ago at 12:03 pm.

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