The children.

Prosecutor David Walgren employed a clever method of humanizing Michael Jackson by describing the pain of his death through the eyes of his children. I was surprised to see a state prosecutor sophisticated enough to use this angle. I don’t think that Jackson himself would appeal the same to the jurors. While Walgren was able to mount this argument without any objection from Murray’s sleeping legal team it was clearly an improper appeal to the juror’s emotions.

Here are some of the excerpts I managed to capture:

“Ladies and gentlemen the evidence in this case is overwhelming. The evidence in this case is abundantly clear that Conrad Murray acted with criminal negligence. That Conrad Murray caused the death of Michael Jackson. That Conrad Murray left Prince, Paris and Blanket without a father. For them the case doesn’t end today or the next day for Michael’s children this case will go on forever. Because they do not have a father. They do not have a father due to the actions of Conrad Murray.”

“Michael Jackson was a creative genius striving for perfection. Striving to perform at the top level. Striving to satisfy the fans that were so loyal to him. He wanted perfection to be the best. He had normal anxiety but was optimistic and excited about the future. In October 2008 he described this to Randy Phillips. The children were playing. Michael Jackson said he didn’t want to be a vagabond any more. He was making long term plans for both himself and his children. We learned about the tour and what he wanted to accomplish. The environmental program that was so important to him. All very important. He wanted to share this message. Wanted to repay his fans because of their long-term support. He wanted his children to come and see what he spent his whole life doing. Being a performer and an entertainer. That was his foundation to go forward with the tour. Part of the deal was that he wanted a large estate in London. So they would not be trapped in a hotel suite. He wanted a large estate with streams and animals. He wanted a normal life for his children. He had a future plan to make a movie. He wanted to be a director. He had hopes and dreams as we all do for himself and his family. We heard about the hospital he wanted to build. A children’s hospital to give it to the world. Murray hoped to be the medical director of the hospital. He was excited about the tour because he knew it would give him a chance to settle down . . . and his children could finally have a normal life.”

“We know from many witnesses what was paramount to Michael Jackson was his three children. And his dreams and hopes were intertwined with his kids. He was so excited about the tour the kids could go with him and see him perform. But none of this came to be none of these hopes and dreams came to be because. But none of this came to be because on June 25, 2009, Michael Jackson was pronounced dead at age 50.”

“Paris had to come in and see her father in that condition and scream out Daddy as she broke down in tears. Prince had a shocked look on his face and was crying. [as he shows film of the children on the monitor] that is what the actions of Conrad Murray did. Not just to Michael Jackson, but to his children.”

The final argument is the third and last time the lawyer gets to address the jurors directly after the voir dire and opening argument. It is the trial lawyer’s final and most devastating weapon. Lawyers are given wide latitude to argue any point associated with the evidence. Despite that they can’t appeal to passion, prejudice or sympathy.

All these arguments on the effect of Jackson’s death on his children, how their hopes and dreams were destroyed, and how his future with them was never to be, are improper. Prosecutors are supposed to appeal to juror’s reason not their emotions.

The role of counsel during closing argument is “to assist the jury in analyzing, evaluating, and applying the evidence” and to “explicate those inferences which may reasonably be drawn from the evidence.” Following these rules may cause the arguments to be dry and less exciting, it is far better than a court of justice ruled by emotion. Prosecutorial comments which inject emotion and fear into the deliberative process, or incite the jury to disregard the law, pass the “bounds of zealous advocacy and enter into the forbidden zone of prosecutorial misconduct.”

It is unethical for a prosecutor to improperly excite prejudice, passion or sympathy. All the arguments about the children and the family were designed to cause sympathy. The defense must object and demand a curative instruction from the judge to prevent an improper appeal to passion and emotions. Too often defense lawyers sit at their table, organizing their thoughts or re-arranging their notes and not listen closely to the prosecutor’s argument. Or perhaps they feel that proper decorum requires them to allow their opponent wide latitude in their argument.

No doubt there are times it is risky to make objections. They are afraid an objection and over-ruling by the court adds the court’s imprimatur to the argument and thus make it worse. But none of these is a good reason to remain silent while your client’s rights to a fair trial are eviscerated. Here it couldn’t have gotten much worse!

A series of specific objections could have thrown Walgren off his game. The interruptions and perhaps strong admonitions from the court would have interrupted the flow of his argument caused him to start stuttering. If the court sustained the objections, as he should, then Walgren would have had to re-arrange his thoughts on the fly. Not easy to do. Not just that, but the jury might have gotten the impression he was playing fast and loose with the rules and he would have lost credibility with them.

If Murray’s legal team decided to remain silent, at least they could have fought fire with fire. Throughout the trial, they were far too respectful of the Jackson legacy. There was a real danger associated with bringing up children and Jackson due to the past accusations of child abuse.

I certainly would have woven in a counter narrative that Jackson was reckless with children. Remember the dangling incident over a balcony with one of them just to excite his fans in the street below. Or the $20 million settlement with one child who stayed at Neverland Ranch.

Then Walgren clearly went too far with the Michael Jackson children’s hospital. What parent in their right mind would send their kid to that hospital? The defense seemed either comatose or afraid to criticize the dead, but this portrait of Jackson as a great father and savior of children had to be rebutted and change the atmosphere in that courtroom.

The same applies with the Jackson family. They all parade in and out of the courthouse and make the point of sitting right up front so everyone can see them. But where were they when he had problems? When he didn’t have a childhood? When he was abused?