Self-Inflicted
I rip my heart from out my chest,
And welcome that which I detest.
I rent my flesh with fingernail
By choice, my own!
I live in hell.
These wounds are self inflicted
I’m going down in flames for you.

–Katy Perry

The defense started its case and on Monday (10/24/11), and immediately ran into a blizzard of criticism and second-guessing by the self-proclaimed legal cognoscenti debating strategy on HLN and TruTv. The TV commentators are having a field day claiming the defense shot itself in the foot with witnesses nurse Cherilyn Lee and doctor Allan Metzger. I am not so sure. Here is the testimony in question:

Dr. Allan Metzger testified that he treated Jackson off and on for two decades for “his profound sleep disorder.” Jackson called him to the mansion on April 18, 2009, and asked for help. Jackson asked Metzger for “intravenous sleep medicine,” and “I think he used the word juice.” Jackson specifically ask for an anesthetic to be delivered by IV because “he did not believe any oral medicine would be helpful.” Despite that Dr. Metzger declined Jackson’s request, and instead gave him prescriptions for two oral sedatives to help him sleep.

This testimony supported the defense claim that Jackson demanded a specific drug and he wanted it intravenously. It also helped with the atmosphere of Jackson being unable to sleep and becoming desperate about the problem. Jackson implored everyone to give him Propofol or something similar. So far so good but in any trial the other side gets to cross-examine and Deputy District Attorney David Walgren took full advantage.

Walgren used Metzger to make the prosecution’s point that using Propofol outside a clinical setting is unacceptable.

Q. “Is there any amount of money that would have convinced you to give him intravenous Propofol in his house?”
A. “Absolutely not.”

Not so good for Dr. Murray.

The next witness was holistic nurse practitioner Cherilyn Lee. She had treated Jackson for a long period of time and had sheaves of notes. These notes were used extensively by both sides to question her. Of course the point was made that Murray didn’t have any notes of his treatments.

As soon as she took the stand she seemed very flustered and almost crying and the court declared a 30 minute recess to let her collect herself. A somewhat bizarre start to the testimony but I think an indicator of what was to come. The defense needed her to support a defense theory that Jackson was doctor shopping in a desperate search for someone to give him Propofol.

Lee said she began giving vitamin C, amino acids and other natural substances to Jackson, even some by IV injection, when he complained of fatigue and low energy. On April 12, Jackson said that his real problem was an inability to sleep and that he needed products for sleep, according to her medical records.

On April 19, as she gave Jackson a high-protein smoothee and a Vitamin B-12 shot, Jackson told her that Propofol was the only medicine that “helps me to fall off to sleep right away.”

Jackson told her he had received Propofol “for surgery” years earlier. “I woke up and I didn’t even know that I was asleep that long.”  “I had fallen asleep so easily, and I wanted to have that experience again.”

“He was sitting very close to me. He looked at me and said, ‘I have a lot of difficulty sleeping. I’ve tried a lot of things and I need something that will make me fall asleep right away. I need Dipravan.”

Lee had never heard of the drug but later did research and later told Jackson it was too dangerous to use in a home.  “What if you didn’t wake up?”
“He said: ‘No, I just need somebody to come here, and I will be safe. If it was monitored. As long as I’m being monitored.'”

“He said: ‘I’d fallen asleep so easily, and I wanted to have that experience again. I want to be able to fall asleep easily so that I can get enough rest, because I’m in the midst of doing a lot of work right now.'”

“He said: ‘I know this will knock me out as soon as it gets into my vein.'”

Jackson asked her to return late that night to observe first hand the problem he had of waking after only two or three hours of sleep. He said he needed a drug that would “knock him out.”  She brought her copy of the Physicians’ Desk Reference, showing Jackson that Propofol’s side effects include dizziness, agitation, chills, delirium, shivering and memory loss.

Lee said she observed that Jackson slept for about three hours, woke up unhappy with the natural substances she was prescribing and asked her to “find me a doctor” who would supply Propofol. She never did so.

Prosecutor Walgren seized on Lee’s refusal to give Jackson Propofol:

Q. “You were not willing to give Propofol or Diprivan in an IV drip, correct?”
A. “That’s absolutely correct.”
Q. “Because what you had learned was that it could kill him, potentially.”
A. “Yes, it wasn’t used for home settings and it wasn’t a sleep aid.”

She pointedly told Jackson that “No one who cared or had your best interest at heart would give you this.”

Ouch!

There is no doubt, that while she added something to Murray’s defense, she also helped the prosecution equally as much if not more. So was this a blunder by the defense? Not necessarily so. I think that they had no real choice but to call her and Metzger as witnesses to make their points. They had to eat the bad with the good.

I think they thought they were on fairly safe ground with nurse Lee because they had her extensive written notes to rely on and question her with. This gave them a sense of comfort as to what they could get out of her and much of it was favorable. They needed to paint Jackson as desperate to sleep, desperate for an IV drug that would work. All the other sleep aids they had tried didn’t work for him and he needed something new. He had the tremendous pressure of the concerts weighing on him and he needed a more powerful drug to get him to sleep so he could practice and perform.

I think that when Nurse Lee got on the stand and saw the entire Jackson family, including Janet, sitting right in front of her she had a panic attack. That is why she was so flustered and didn’t know what to do or say. She hated being called by the defense and wanted to signal the family that she was still on Michael’s side. It is a common human emotion. Thus I think she was a hostile witness. Note that she bumbled around answering the defense questions but easily answered for the prosecution. This is usually the sign of a hostile witness.

The only mistake that the defense made was not making clear she was hostile to them. Chernoff should have made this clear when questioning her. The jury needs to know the witness’ bias and hostility. It would go a long way in defusing any positive testimony she gave the prosecutor.

In the end, I think calling both these witnesses was a strategy for the defense, not an inadvertent blunder. I have been in their shoes having to call a hostile witness to drag some important testimony out of the witnesses mouth. It’s not fun, but necessary.