Dr. Ken Broda Bahm:
It is generally a mistake to change strategies in the middle of trial. Dr. Conrad Murray, the personal physician hired to care for Michael Jackson during the rehearsals for his comeback tour, is now in trial on involuntary manslaughter charges in the entertainer’s death, based on his administration of Propofol, a drug usually administered only in hospital settings. Over the course of more than a year leading up to the trial, the theory the defense touted in the press has been that the singer, unable to sleep, dosed himself with the powerful sedative by drinking it in a glass of juice.
In telling the jury the same story in opening statement, defense attorney Edward Chernoff said, “When Doctor Murray left he room, Michael Jackson self-administered a dose of Propofol that, with the lorazepam created a perfect storm in his body that killed him instantly.” But the appearance, at least, is that this theory is being abandoned. This past Wednesday, attorney Michael Flaningham told the judge that the team would no longer pursue the defense that Michael Jackson killed himself by ingesting Propofol, after doing their own study showing that ingestion would not have been fatal.
As the trial resumes tomorrow, this puts a large question mark over the defense, while also providing a good lesson on caution in opening statement: don’t overpromise, and don’t violate the jury’s or the court’s trust by telling a story that you cannot prove. This post takes a closer look at the Murray defense shift, along with some relevant research on the effects of weak evidence, and provides a few recommendations for keeping your opening and your case on the right side of caution.
A Curious Defense Move
Things can always change, but for now, they aren’t going perfectly for Doctor Murray. The same day that the defense pulled this explanation, Doctor Alon Steinberg, a medical expert for the prosecution, provided a good example of how to bottom line the testimony: “Giving Propofol in an unmonitored setting without personnel, without appropriate monitoring, without appropriate equipment, not being prepared, not appropriately reacting to an arrest, not calling 911 in a timely fashion, all directly impacted his life…If these deviations were not to happen, Mr. Jackson would have been alive.”
Obviously the defense needs a counter narrative, and for a long time the story focusing on the singer’s own decision to dose himself with Propofol seems to have been it. In the opening statement, the defense didn’t specifically say that the ingestion was oral, but that was the strong implication from the other evidence: a small amount of Propofol found in Jackson’s stomach, and a fruit juice jar found at the singer’s bedside, with the implication that he may have taken the drug with the juice.
So why would the defense apparently change horses in mid-trial? One theory would be that the science just didn’t pan out, and the team only learned that too late. But that doesn’t seem to be the explanation. On Thursday, defense attorneys told the judge that they knew as far back as May that the oral ingestion of Propofol would not pan out. So why emphasize it pretrial and suggest it in opening statement? Some commentators have speculated that the shift offers “a backstage look at possible defense gamesmanship in leading prosecutors to prepare to answer a defense theory that would never be presented.” If that is the calculation, then it is a calculation that leaves out the jury. While it is always nice to irritate the other side, that isn’t exactly the purpose of trial.
There are still a couple of other possibilities for the defense. One is that the self-administration theory is still alive, and defense will claim that Jackson injected the drug into an IV tube while the doctor was out of the room. Another is that the defense will turn their attention to the virtual pharmacy of other drugs Jackson had at his disposal, like Lorazepam. But the story, like the autopsy report, has focused on Propofol. If the defense now fails to support that apparent story in opening statement, they will leave the jury wondering whether they can trust anything the defense says.
The Effects of Weak Evidence
Of course, we might fault the defense for pulling this explanation no matter what the science says, based on the idea that a weak theory is better than no theory. That intuition, however, conflicts with some recent research. In defense of the defense team, it is better to present no science rather than to present science that will just be crushed by the other side.
Researchers from Brown University recently released a study in the journal Cognition showing that weak evidence is worse than no evidence when it comes to changing opinions. As Science Daily summarized, “Give people a weak reason and they’ll focus too much on it. Give people no evidence and they’ll supply their own probably more convincing reason.”
So, the answer may be that the defense, rather than building a convincing counter narrative, is just retreating to reasonable doubt: We don’t really know what happened that night. If that is the case, it may not be a bad strategy, but it would have been better to have just presented that strategy straightforwardly, without suggesting an alternate scientific theory to the court and to the jury.
Recommendations: Stay Cautious in Opening Statement
1. If in doubt, leave it out. If there are facts that are still up in the air as you prepare your opening statement, leave them out. If they do break your direction, then you can always save it as a surprise during your case and closing, a move that is often even better than promising it in opening.
2. Focus less on previews. Some see opening as a long list of statements each beginning with the phrase “the evidence will show…” Yes, the proper purpose of opening is to preview your case, and yes there will be specific moments where you will want to preview specific evidence and testimony. But when “coming attractions” becomes the main focus of your opening, you are missing the more basic questions that jurors will have: What is the story? What are your central messages? What are the main strengths and weaknesses in the case?
3. Keep track of the opposing party’s promises. In one recent trial I was monitoring, my client asked me at the end of evidence to go back to the other side’s opening and make a “broken promises” list. Even focusing on those that weren’t merely technical, but would stand out to the jury, the list was a fairly long one. And the fact that our own house wasn’t made of glass in that case meant that we could lob some of those promises back at the other side during closing arguments. This technique can work very well as long as it is presented as an important gap in what the jurors heard, and not a “gotcha” on the other side.
Rapidly changing fortunes is the nature of today’s celebrity trials, and now that the Murray prosecution is finishing its case, we will want to stay tuned to what the defense has to say. But one thing seems sure: The defense will have to overcome the perception that it is changing stories, and will have to put something out there to regain the jury’s trust.
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Related Posts:
- No Blank Slate (Part 1): In Opening, Treat Your Jurors as Motivated Reasoners
- Take a Lesson from the Casey Anthony Verdict: It Is the Story, and Not Just the Evidence
- Your Opening: Tell It Like a Story, but Tailor It Like a Strategy
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Brown University (2011, March 7). Weak supporting evidence can undermine belief in an outcome. ScienceDaily. Retrieved October 17,
Photo Credit: K. Broda Bahm