Dr. Conrad Murray's defense on Wednesday abandoned a theory that it touted for over a year that Michael Jackson swallowed the drug that killed him, an abrupt shift in strategy that potentially undermines its case.
The reason was clear: The defense had learned that its claim that the singer swallowed the anesthetic propofol while Murray was out of the room in June 2009 can't be supported with scientific evidence.
The developments, along with a medical expert's repudiation of Murray's medical skills, suggested that the defense must recoup significant lost ground in its bid to acquit him of involuntary manslaughter in Jackson's death.
Murray has pleaded not guilty. It was not clear whether the defense would still argue that Jackson gave himself a dose of the drug some other way, such as injecting it into an IV tube that was sending the drug into him.
"This is potentially devastating for the defense," said Manny Medrano, a former federal prosecutor who now practices criminal defense. Since the defense proposed in opening statements that Jackson may have self-administered propofol, he said, "that will become the elephant in the room for jurors."
Medrano said the 11th-hour switch shows "a lack of preparation and failure to really think the defense theory through."
Superior Court Judge Michael Pastor and prosecutor David Walgren appeared stunned when attorney Michael Flanagan arose in a hearing outside the jury's presence and announced the defense's decision.
"We are not going to assert at any point in this trial that Michael Jackson at any time orally ingested propofol," said Flanagan, who revealed he had commissioned his own study about oral ingestion of the drug. He said the study concluded that it would not be absorbed into the body when ingested.
The defense first offered the theory that Jackson swallowed the fatal dose at last year's preliminary hearing. Both in and out of court, attorneys suggested that the singer may have poured some into fruit juice and drank it. Experts have testified this week that the theory was unreasonable.
Jurors have seen charts which note that a small amount of propofol was found in Jackson's stomach, but Flanagan told the judge on Wednesday the method of oral ingestion was not specifically mentioned in openings.
Flanagan's recent questions to witnesses indicated that he might now say that Jackson swallowed pills on his bedside table, specifically the sedative lorazepam. If they do focus on the sedative, they would be challenging the coroner's ruling that propofol killed the singer.
Moments after Flanagan's announcement, the jury was reconvened and a prosecution expert took the stand, saying that Murray was guilty of extreme deviation from the standard of medical care practiced by physicians.
Murray was "responsible" for Jackson's death, said Dr. Alon Steinberg, a cardiologist from Ventura, Calif., who evaluated Murray's actions for the California Medical Board.
"If all of these deviations didn't happen, Michael Jackson might have been alive," he said.
Jurors listened and took notes as he enumerated six "extreme deviations" by Murray, including using propofol, a powerful anesthetic normally given through an IV in hospital settings, to treat insomnia.
"I have never heard of it," he said.
Dr. Nader Kamanger, a UCLA sleep expert, testified later Wednesday that Murray didn't appear to take any steps to diagnose why Jackson couldn't sleep. He agreed that propofol shouldn't be used as a sleep aid.
"It's beyond a departure from the standard of care into something unfathomable," he said.
Kamanger, who walked jurors through a guide to various causes of insomnia, said Jackson should have been tested physically and psychologically before any drugs were given. He was to return for cross-examination on Thursday.
Steinberg called Murray's behavior "strange" and said that the single most important thing he could have done to save Jackson was to call 9-1-1 when he found Jackson not breathing.
"Every minute counts," he said, adding that even a five-minute delay in calling could be the difference between life and death.
According to Murray's own statement to police, he waited at least 20 minutes before telling a security guard to call 9-1-1. In the meantime, he said, he was doing CPR. Steinberg said he was doing it wrong.
Legal experts had questioned the defense decision early on to allow Murray to talk to police detectives. His three-hour interview was played for jurors earlier this week and it turned out that Steinberg's assessment came from that interview.
Steinberg said he based his testimony and his evaluation of Murray for the board on "his own words."
In an odd twist, this led Flanagan to suggest during cross examination that Murray may have lied when he said he was gone from Jackson's side for only two minutes.
"Do you know for a fact Dr. Murray was gone longer than two minutes?" Flanagan asked.
"No" said the witness, who stressed he was relying on Murray's account.
When Steinberg said he believed Jackson was "savable" because Murray detected a pulse, the attorney asked, "How do you know that Dr. Murray checked the pulse?"
"Because he described it," Steinberg said.
Defense attorney Thomas Mesereau Jr., who won Jackson's acquittal of molestation charges and has been following the case closely, said it was a "very, very strong day" for the prosecution and the defense cross examination merely gave the expert a chance to reinforce his opinions.
"But remember the trial isn't over till it's over," he said. "The defense hasn't called a single witness yet."
Mesereau said the abandonment of the defense's central theory shows that "they're having a difficult time coming up with a viable explanation of why or how Michael Jackson would have caused his own death."
The defense's announcement came a day after a coroner testified that it was unreasonable to believe that Jackson could have swallowed the drug.
Defense attorneys have claimed that Murray is not to blame for Jackson's death because the singer, desperate for sleep, probably gave himself an extra dose when he was out of the room. They also suggested at one point that Jackson could have injected the drug into his IV line.
The coroner said that that was an unreasonable theory given that he was already groggy from sleep medication and the dose of propofol Murray had administered.
Loyola Law School professor Stan Goldman said the lorazepam theory might be sufficient to give jurors an element of reasonable doubt.
"I think the defense had a better argument that Jackson got up and took all these pills and that in combination with whatever else was in his system did him in," said Goldman. If the jury is looking to the defense for reasonable doubt and want to acquit Murray, he said, that might help.
"It's not a lot to hang its hat on," he said, "but in a lot of criminal cases you have nothing."
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