Monday, November 21, 2011

Conrad Murray Gets Michael Skakel'ed

In a relatively unsurprising turn of events, Michael Jackson's doctor, Conrad Murray was found guilty of involuntary manslaughter (which carries a possible sentence of four years in prison) on Monday, November 7, 2011. His sentencing hearing is scheduled to be carried out on Tuesday, November 29, 2011.

Nonetheless, over the weeks as I read about the case via news coverage, I found certain developments at trial quite interesting from a legal point of view. While some might argue that the prosecution had an easy case considering that Dr. Murray caused the death of one of the most popular musicians to ever live, one need only reference the Casey Anthony trial to know how hard a prosecutor's job can be if the dots are not connected properly. (Of course, it didn't make the prosecution's job any harder when the defense's star expert witness was found in contempt of court and fined $250! (Check out this article for an amusing tale about the importance of prepping your witnesses before putting them on the stand).

As an attorney with an expertise in visual communication strategy, the most interesting fact I learned about the Dr. Murray trial was the technique employed by the prosecution during closing arguments. Apparently, the lead prosecutor "displayed a large picture of Jackson's gaunt, lifeless body on a hospital gurney and played the sound of his drugged, slurred voice, as recorded by Murray just weeks before the singer's death." The writer of the article accurately described this as "the most shocking moment… ."

There are three schools of thought on this kind of closing argument. There are those that would object vehemently against what the prosecutor did in the Conrad Murray trial. There are those that would applaud him for merely marshaling his evidence in a persuasive way, and finally, there are those that would weigh such use on a case by case basis. I happen to fall under that last category of person. There are times when using visuals is perfectly acceptable when making a pointed and strategic argument. Then there are times when the use of visuals can elicit potentially prejudicial confusion among jurors.

In the case of Conrad Murray, had I been the defense attorney, I would have objected to the prosecutor juxtaposing an image of Jackson's autopsy with his slurred words spoken when he was alive. The question I would have asked is, "What does Jackson's autopsy photo have to do with his slurred speech from a phone conversation weeks before his death?" The prosecution is mixing timeframes and preying on the sympathies of the jury to illicit an emotional response from them as they make their decision. Simply putting up a picture of Jackson with words he spoke could confuse a jury into thinking that these were Jackson's dying words and the fact that he was talking to Dr. Murray could not-so-subtly link him directly to Jackson's death by insinuating Murray's immediate presence at the exact time of death, which was a point in dispute at trial. Do lawyers all over the country employ a strategy of enraging jurors all the time? Yes, but they aren't supposed to do that unless there is some kind of good faith argument being made.

Nonetheless, with the proper narrative, I would guess that the argument here is that perhaps Dr. Murray should have understood that this kind of speech and behavior weeks before could ultimately lead to Jackson's death if he was not treated properly. In that case, the audio is used as a foreshadowing of Jackson's death that Dr. Murray should have seen coming. The visual becomes kind of a date-less timeline of the story of Jackson's death and rather than understanding them as simultaneous pieces of evidence, they are viewed as one leading to the other over time.

Even though this strategy received some publicity in Dr. Murray's trial, it is not a new one. In 2001, Brian Carney, Esq. (President of WIN Interactive), employed a similar strategy against another famous "Michael" in the State v. Skakel trial in Connecticut. In that trial Michael Skakel was convicted of the death of Martha Moxley that had occurred twenty-seven years prior. Working with State's Attorney Jonathan Benedict, Mr. Carney put together a closing argument that placed images of the murdered Martha Moxley next to transcribed audio clips of Michael Skakel speaking about the days surrounding her murder. The argument that the prosecutor made in his narrative was that at certain times during Skakel's recounting of the events, he was referencing different moments of Moxley's life. At one point a nice image of Moxley appeared showing a pretty girl when Skakel mentioned her while she was still alive.

Then, when Skakel voiced alarm when asked about Moxley's whereabouts, the image of Moxley changed to that of her body at the murder scene. While, at first, this may seem like the prosecution is inserting meaning into something that may not have been intended, the prosecution was making an argument. The audio was already in evidence and therefore useable in closing. The photos were in evidence and also useable in closing. The prosecution then used them in a way to make the argument that Skakel knew what happened to Moxley and that he was thinking of her at different times during his statements. The argument was about Skakel's knowledge of guilt.

If you are reading the above and still feel uneasy about the legal ramifications of such tactics, you would not be alone. The Skakel case raised this issue in particular on appeal. The Supreme Court of Connecticut said, “By juxtaposing the photographs of the victim with the defendant’s statements, the state’s attorney sought to convey to the jury in graphic form what the State believed was the real reason for the defendant’s panic, that is, that he had killed the victim.” State v. Skakel, SC 16844 (2006). The court supported the use of visuals in this way because attorneys have the right to take evidence, arrange that evidence, and then argue in good faith from that evidence what he/she believes is the story of the case.

In another case cited in the Skakel appeal, the Supreme Court of Connecticut also explained an attorney's rights when making closing arguments when it said, "[C]ounsel is entitled to considerable leeway in deciding how best to highlight or to underscore the facts, and the reasonable inferences to be drawn therefrom, for which there is adequate support in the record. We therefore never have categorically barred counsel’s use of such rhetorical devices, be they linguistic or in the form of visual aids, as long as there is no reasonable likelihood that the particular device employed will confuse the jury or otherwise prejudice the opposing party. Indeed, to our knowledge, no court has erected a per se bar to the use of visual aids by counsel during closing arguments. On the contrary, the use of such aids is a matter entrusted to the sound discretion of the trial court.’’ State v. Ancona, 270 Conn. 598 (2004).

Attorneys have a great amount of discretion during closing arguments, however, that does not mean one cannot object when they allegedly overstep those bounds. The key is knowledge about what is acceptable and what isn't. Many attorneys do not know what to do when faced with this kind of visual communication strategy. It is that lack of knowledge that can often turn the tables on even well-seasoned attorneys.

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