By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


Jury selection has begun in the high profile criminal case against Dr. Conrad Murray, the physician charged with involuntary manslaughter in the drug overdose and death of Michael Jackson.  This comes the day after a California Court of Appeals denied Murray’s request to have the jury sequestered in what will assuredly be intense media coverage and “expert” speculation.


Defense attorney Edward Chernoff, who is defending Dr. Conrad Murray on an involuntary manslaughter charge in connection with Michael Jackson’s drug overdose death in 2009, wanted to call a number of witnesses to testify about Jackson’s 2005 acquittal on child molestation charges. One of the witnesses was a police detective who searched Jackson’s Neverland home in Santa Barbara County in 2003 where drugs, including Demerol, were found. Chernoff wanted to use the detective and a Dr. Arnold Klein, a dermatologist who gave Jackson Demerol, to show that the famous pop singer was addicted to prescription drugs.


According to a report in the Washington Post, lead prosecutor David Walgren lamented that Dr. Murray’s defense team was trying to “character assassinate” the victim. “The people are concerned about this trial deteriorating into an attack on Michael Jackson,” Walgren was quoted by the Post.


The courtroom indignation of prosecutor Walgren is nothing short of pure hypocrisy. Prosecutors in Jackson’s 2005 trial sought, and secured, approval from Judge Rodney Melville to present testimony concerning Jackson’s prior molestation of five boys, ages 10 to 13. It was okay, from a prosecutorial point of view, to “character assassinate” Jackson as a serial pedophile in 2005 but somehow it is not okay to allow Chernoff to show the singer was a drug addict/pedophile.



What it boils down to is this: prosecutors believed Michael Jackson, as a criminal defendant, had bad “character” in 2005 when they presented evidence he was addicted to drugs and sexual exploitation of children, but in 2011, as a deceased victim, he has “character” and was a person of good standing in the community.


Judge Michael Pastor, presiding over Dr. Murray’s trial, agreed with prosecutor Walgren, ruling that evidence of Jackson’s prior drug addiction and pedophilia was irrelevant in Dr. Murray’s trial.

But what is the law when it comes to impeaching a victim’s character? The California Evidence Code, § 1103, provides that “the defendant in a criminal case may introduce opinion, reputation, or specific acts evidence of the victim to establish trait and action in conformity with that trait.” § 1103 then sets forth three circumstances under which this character may be introduced:


  1. Non-Violent Character Traits. If the defendant offers evidence of a non-violent trait of the victim, the prosecution may offer evidence to rebut/rehabilitate the victim.
  2. Character for Violence. If the defendant offers evidence that the victim had a violent character, the prosecution may offer evidence to rebut/rehabilitate, and to show that the defendant has a character for violence.
  3. Self Defense. When defendant has a claim of self defense, evidence of prior violence by the victim that the defendant was aware of is admissible without any contention that they establish a relevant character trait when because, in such a case, it is the defendant’s state of mind that matters. Prosecution cannot rebut in this case.


Michael Jackson’s long history of drug abuse, especially a hard narcotic like Demerol and the drug (propofol) which ultimately killed him, is, we believe, relevant to the issue of whether the pop star accidentally killed himself through irresponsible individual behavior or whether Dr. Murray caused to his untimely demise. And we believe that if Dr. Murray is convicted, the conviction should be reversed on appeal because he will have been denied the right to present a legitimate defense—one that could only be presented by showing Jackson’s “character traits.” The U.S. Supreme Court, in Crane v. Kentucky, explained: “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’”


But as the Supreme Court, in Chambers v. Mississippi, noted in 1972: the right to present a defense “is not absolute, and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal process.” However, the high court in 1987, in Rock v. Arkansas, held that such restrictions may not be “arbitrary or disproportionate to the purposes they are designed to serve” and that “the State must evaluate the interests served by a rule justify the limitations imposed on the defendant’s constitutional right to testify.”


Jackson’s prior drug addictions and alleged pedophilia were probative to the issue that he continuously lived in a reckless manner, and, therefore, had possibly contributed to his own demise. That issue, of course, would have to be decided by the jury—the point is that Dr. Murray’s defense team had a right to present the defense that Jackson, not Murray, was ultimately responsible for the singer’s death.


Of course, prosecutor Walgren did not want Dr. Murray to present this defense because, under § 1103, he would have been put in a position to “rebut/rehabilitate” Jackson’s character. That would have been an impossible task because California prosecutors had presented significant evidence in 2005 alleging that Jackson was a drug addict and serial pedophile. Prosecutor Walgren simply could not have rebutted the overwhelming evidence that Jackson was a longtime drug addict who was reckless in his personal affairs, nor could he have presented any evidence that would have rehabilitated Jackson’s character, which is an unfortunate legacy of an alleged criminal and irresponsible individual behavior.


Less we be confused with endorsing prior “bad acts” evidence, we should point out it is a subject matter we have criticized in prior posts (here and here). But this is one of those “if it’s good for the goose, it’s good for the gander” situations. Prosecutor Walgren did not want to be put in a situation where he had to “rehabilitate” Michael Jackson, an impossible task except to his adoring fans. And while we would not like to see Jackson’s name unnecessarily drawn “through the mud,” we strongly feel that Dr. Murray’s constitutional right to present a defense is more important than Jackson’s character. Whatever blemishes exist against Jackson’s character were put there by his own behavior and it is an issue that the jury should not be instructed to ignore. Bottom line: if Jackson’s history of pedophilia was probative and relevant to making a case against him for child molestation in 2005, then that same history, as well as his history of drug addiction, is potentially probative and relevant to the issue of whether he was depressed and self-administered the propofol that killed him as Dr. Murray’s defense team claims.


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization