Michael Trapido
Michael Trapido

Dr Murray guilty but bail refusal an aberration

The verdict of guilty of involuntary manslaughter delivered by the jury in the People of the State of California v Dr Conrad Robert Murray is, in my humble opinion, the correct one. The decision by Judge Michael Pastor to deny Murray bail pending sentencing and appeal is however an aberration without any basis therefore.

Let’s start with the conviction :

The prosecutors charged Dr Murray with involuntary manslaughter for what they believed to be the key role he played in the death of pop icon Michael Jackson on June 25 2009.

Involuntary manslaughter, in the US, is the unlawful killing of a human being without malice aforethought. It is distinguished from voluntary manslaughter by the absence of intention. It is normally divided into two categories; constructive manslaughter and criminally negligent manslaughter.

Criminally negligent manslaughter occurs where there is an omission to act when there is a duty to do so, or a failure to perform a duty owed, which leads to a death. The existence of the duty is essential because the law does not impose criminal liability for a failure to act unless a specific duty is owed to the victim. It is most common in the case of professionals who are grossly negligent in the course of their employment. An example is where a doctor fails to notice a patient’s oxygen supply has disconnected and the patient dies (R v Adomako). (Wiki)

While much of the evidence related to the circumstances surrounding the death of Jackson, Dr Murray’s conduct and the role played by other parties, the pivotal issues which fell to be decided related to the appropriateness of using the medication propofol for the complaint, whether the recognised protocols for using this dangerous substance were observed and the conduct of the accused when the emergency occurred.

Obviously the standards of care required of a doctor, in this case a cardiologist, are far higher than those of the man in the street.

In reality the shootout was between Dr Steven Shafer, a professor of anaesthesiology at Columbia University, for the state, and Dr Paul White, with an interest in intravenous anaesthesia who has written five books on propofol.

Dr Shafer found 17 “separate and distinct egregious violations” of the standard of care, of which four were unconscionable, based on Dr Murray’s police interview:

1. The lack of the basic emergency airway equipment.
2. The lack of the advanced emergency airway equipment.
3. The lack of suction apparatus.
4. The lack of an IV infusion pump.
5. The lack of alarmed pulse oximetry.
6. The failure to use a blood pressure cuff.
7. The lack of an electrocardiogram.
8. The lack of capnography.
9. The failure to maintain a doctor-patient relationship.
10. The failure to continuously monitor the mental status of the patient.
11. The failure to continuously monitor the breathing of the patient.
12. The failure to continuously monitor blood pressure and pulse oximetry, and to have heart monitors.
13. The failure to call 911 immediately.
14. The failure to chart at the outset of the procedure (egregious and unconscionable).
15. The failure to maintain written informed consent (egregious and unconscionable).
16. The failure to document throughout the course of sedation (egregious and unconscionable).
17. The failure to disclose to both the paramedics and UCLA the use of propofol and what Murray witnessed at the arrest.

In addition Dr Alon Steinberg, a cardiologist — also for the state — testified that propofol is only used in cases of needing deep sedation when the patient will go through a significantly painful procedure and there are risks that the patient could stop breathing; that is why it is used with constant monitoring and emergency equipment on hand. He also said that propofol is not medically indicated for sleep. “I have never even heard of it being used for insomnia, it is a very powerful surgical sedation agent.”

Accordingly the state experts were of the unequivocal view that propofol was inappropriate for Jackson’s complaint and where the drug is used, because it is so powerful, strict protocols have to be observed in order to respond to any emergency. In the case of Jackson, Dr Murray — in their opinion — should not have been using the drug for insomnia, did not employ the protocols correctly, if at all, and did not respond to the unfolding emergency in an appropriate manner.

Dr White, for Dr Murray, had worked with Dr Shafers doing research. It was heard that Dr White performed a study with animals and found that propofol given directly into the stomach had no clinical effect. Regarding the paper Dr Shafer testified about a sleep study in China. Dr White said “my take on the paper was different than Dr Shafer’s. The study showed that propofol was safe and effective for normalising disturbed sleep but it’s certainly not a definitive study”.

Dr White’s account differed from Dr Shafer’s on what transpired on the night including the fact that he believed that Jackson himself had administered further propofol after the initial dose of 25mg given by Dr Murray. He said that the 25mg should produce “little anxiety, little sleepiness”.

But he did confirm that administering propofol without careful bedside monitoring could be dangerous. When asked whether he agreed that there were instances where Dr Murray deviated from the “standard of care” on June 25 2009 he responded by saying “yes”. He also admitted that he had never administered propofol in someone’s bedroom or heard of anyone else who had done it.

Dr White agreed that Dr Murray deviated from the “standard of care” of Jackson but did not know to what degree.

The coroner ascribed the death of Jackson to “acute propofol intoxication”.

If we are to accept that Dr Murray was only prosecuted because it was Jackson, that the singer was entitled to take propofol for insomnia and somehow did administer the fatal dose himself, this cannot detract from the fact that the accused knew of the danger of this medication and failed to implement the proper protocols to safeguard his client.

Even if Jackson had self-medicated then, according to my understanding of the experts’ evidence, had the correct protocols been observed the singer would have been alive today.

Moreover when the proverbial hit the fan, Dr Murray did not respond appropriately, even going as far as to hinder the efforts of the ambulance team and other doctors by not informing them that Jackson had taken this dangerous drug. That attempt to cover up shows that Dr Murray knew he was playing with fire and that his peers would not congratulate him for doing it.

The verdict of the jury is therefore, in my humble opinion, the correct one.

Having been convicted, a date was set for later in the month for sentencing.

The judge thereupon refused bail and said Dr Murray must be remanded in custody.

“This is a crime where the end result (was) the death of a human being,” the judge said. “Dr Murray’s reckless conduct in this case poses a demonstrable risk to the safety of the public” if he remains free on bond, the judge said.

He then, according to the Washington Post, ordered that Dr Murray be taken into immediate custody and be held without bail pending sentencing November 29.

Dr Murray has stood his trial and there is nothing to suggest he will be a flight risk. If, as suggested by the judge, he now poses a danger to the public then it would be of interest to learn how his circumstances differ from yesterday.

Nothing whatsoever has changed in respect of his being a danger to the public.

It would also be interesting to learn how, since nothing has changed in that regard, the judge has allowed him to be out on bail during the trial. The conviction does not mean that he represents any more danger to the public than he did yesterday.

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  • Is Google the vehicle of choice for murderers like Tabak?
    • Skerminkel

      I have not followed the case (I actually think the media circus is ridiculous), but I happened to channel hop onto the bail application, as aired on BBC last night. It seems the bit I saw was exactly the part that Traps should have viewed.
      The judge discussed the issue at length in his verdict and addressed all the questions raised. Two answer the last question: The difference was that before the verdict Murray was “assumed innocent”, thereafter quite the opposite. Without knowing his options for fleeing, it is clear that, when there was still a chance of being found innocent, he might have been willing to take the risk and hold out. After the verdict, he knew he will go to jail. Only the duration must be confirmed.
      What struck me most, however, was the defending attorney’s body language in the argument for bail. He touched his face all the time and even covered his mouth. That, to me, is a clear indication that he did not believe that his arguments held water and that bail will be granted. The state attorney was the exact opposite – confident and sure of his arguments. I was therefore not surprised at all when bail was denied.
      I recommend going to the youtube version of the verdict and not the Washington Post’s summary.

    • Sterling Ferguson

      It was Dr. Murray’s lawyer the reason he was not granted bail because he was not ready to ask for bail. However, I understand DR. Murray was later granted bail.

    • Bleet

      Maybe now that he’s been convicted it’s been proved beyond reasonable doubt that he is a danger to the public?

    • Solitoliquido

      I agree totally with this analysis.

      It doesn’t make any sense at all to suddenly hadcuff the man and throw him into a jail cell, denying him the few days of freedom that he was left with before incarceration ( I know that someone else will argue that Michael Jackson was not allowed to complete his last tour!) . It is also hard to see how Dr. Murray would suddenly become a danger to the public.

      That he was criminally negligent is of no doubt, the rest smacks of overzealous malice!

    • Peter Joffe

      Whatever the pro’s and cons of this case may be it was very sad to see Dr Murray in handcuffs like some common and dangerous criminal, for all the world to see.
      Dr. Murray is clearly a decent man and I cannot believe that he is a danger to the public as stated by the judge. Why he messed up we may never know but, as we all know, Jacko was really Wacko and must have been a very difficult and paranoid patient. No excuse though but, at least treat the Doctor with a bit of dignity.

    • Graham

      Hi Michael

      I don’t quite understand how you can be convicted of a crime which will result in jail time, but then be granted bail until sentencing.

      Surely he should be taken straight into custody and adjustment made to his jail time depending on when sentencing is handed out?

      I don’t know the legal side to this, but to me this makes sense.

    • Lesego

      I don’t understand, Trapido why you don’t think the judge is being unfair to Dr Murray due to racism. I know its a cliche but what should I do if racism itself is a cliche. If the doctor were white I don’t think he would have even been found guilty nor even put into custody. An excuse would have been made up that maybe he tried to conceal evidence because he was traumatised or something but I’m sure that they would have taken his word for it that MJ was the one who administered the medication to himself.

    • MLH

      I presume Dr. Murray will imediately be struck off the medical role; as such how can he be of danger to anyone, he will no longer have any patients?
      We do not know how many times similar lapses of judgement occurred on his watch, but it seems clear that the doctor did not believe himself to be ‘on duty’ as should have been the case.

    • Ian

      At least in the US a convicted felon goes to jail first and then appeals from there. Here in SA an appeal keeps a convicted felon out of jail – like Selebi – and more often paid for by taxpayers money.

    • Andile

      He is a flight risk. Millions in the bank account. He could easily escape the consequences of his actions.

    • Lesego

      Ian how come the likes of you find it very difficult to adhere to the topic?

    • Cari

      America is all about the drama. What better show can you create than dramatically handcuffing the man and dragging him off to jail.

    • http://blogroid.wordpress.com Nicholas

      Thank you, as before this has been a most useful analysis irrespective of the bail issue. I can’t help feeling that the doctor was essentially in thrall to a very powerful figure [MJ] and basically behaved as a man would who knew how how his bread was buttered.Basically MJ was a basket case and his death was as inevitable [albeit regrettable]as that of the late Amy Winehouse [both RIP]. The analysis you have presented makes it obvious why he would be found guilty on legal grounds. Were morality a matter for adjudication then one would have to find him simply negligent.

      Perhaps now that you have evaluated MJ you can now explain the JM suspension business, which it is assumed will be on full pay [in the absence of any comment to the contrary] but is otherwise confusing.

    • Mntu’

      When proccedings were conceptualised, and eventually initiated against the Dr, I just couldn’t help but feel sorry for the Dr. Perhaps this is due to how I felt when I imagined myself in his shoes. Just as an attorney acts on the instructions of a client, so does the Dr to a patient. However, such cannot be allowed to be at the expense of ethical standards of one’s profession when demands of those being served cross certain borders. Dr or Lawyer (Attorney). In this case, moral and ethical imperatives demanded that the Dr refuse to do what he himself knew was wrong! He should have pulled out in time, and make public announcement to that effect, rather than ensuring that he gets his bread buttered, no matter what!

      In the absence of evidence of similar behaviour on the part of the Dr with regard to other patients, putting him in custody pending sentencing is, to me but an unfortunate state of affairs! Barbarically punitive!

    • Traps

      @ Nicholas – I’m sure this article will clarify the position on Malema :

      http://www.businessday.co.za/articles/Content.aspx?id=158538