PROPOFOL SAYS IT ALL (and there's no defense)

(originally written for the Patriot Ledger)

After weeks of speculation, it’s clear now that Michael Jackson's death is being treated as a "homicide" and that the focus of the investigation is Conrad Murray, a doctor who was at Jackson's house when the singer died. Search warrants were executed at Murray’s homes and offices in two states and Murray reportedly admitted giving Jackson several different drugs before he died, including Valium, Versed and the powerful anesthetic Propofol (aka Diprivan).

Declaring that the case is a "homicide" means experts have determined Jackson did not die because of an "accident" or "natural causes". "Homicide" means his death was the result of a criminal act. But the term leaves open the important question: murder or manslaughter?

Based on what we know so far, either charge is possible. The final decision will involve an assessment of Murray's "recklessness". The more his actions seem like careless negligence, the more likely he will be charged with the less serious crime of manslaughter. Behavior that moves higher up the recklessness scale will push the decision-makers toward murder.

Toxicology tests (not yet released) will reveal how much and what types of drugs were in Jackson's system when he died, and whether he was also under the influence of other drugs seized from the home, such as Trazodone. While it's not uncommon to use Versed in conjunction with Propofol for surgical patients, Trazodone is such a powerful medication, patients planning to undergo a medical procedure with anesthesia are advised to stop using the drug weeks in advance of surgery. A lay person would know this by Googling "Trazodone". Murray, a doctor, would have known this without consulting the internet.

Propofol essentially induces a coma, which is why patients under anesthesia must be monitored constantly by a medical professional. Propofol isn't even on the government's controlled substances list because it is NEVER used outside of a hospital setting. In other words, there's no need to "control" it - because nobody has ever been dumb enough to use it as a sleep aid in a private home. The stuff is so dangerous, in fact, anesthesiologists don't even turn their backs on patients in the operating room - much less leave to make phone calls as is alleged Dr. Murray did after administering the drug to Jackson the morning he died.

The strangest part of the story isn't that a medical professional would be so irresponsible with such dangerous drugs, it's that after Murray finished his phone calls and returned to Jackson's bedroom to find that the singer was not breathing, he waited a ridiculously long time before calling 911.

One excuse his lawyer gave was that Murray didn't know the address. Another was that there was no landline phone in the house. Neither of these explanations makes sense.

Circumstantial evidence suggests the delay might have been for a more nefarious reason designed to cover Murray’s role in Jackson’s death.

For starters, Murray apparently made additional phone calls during the delay - and while the specifics have not been released, it's fair to say his decision to dial any number other than 911 will support the prosecution's theory that he was unconcerned about Jackson's life; an issue that will predominate in any homicide trial where jurors are assessing whether Murray was "reckless".

When 911 was finally called, the security guard said Murray was with Jackson, who was lying on a bed. The 911 operator told the guard to put him on the floor, presumably because CPR has to be done on a hard surface.

Murray, a cardiologist, would have already known this - - so why was Jackson on a soft bed?

One possibility is that if Jackson died from Propofol, Murray would have known that the drug, especially in combination with benzodiazepines such as Valium and Versed, would have caused respiratory collapse BEFORE heart failure; a serious risk when a patient under anesthesia is dehydrated - and Jackson had just come off a long practice session for his upcoming concerts in London.

When Propofol causes respiratory failure for a "dry" patient, the person needs hydration. And if Murray understood this, maybe his delay in calling 911 was because he was giving Jackson IV fluid – a procedure that takes time and doesn’t need a hard surface. Murray also might have known that because Propofol dissipates quickly, delaying the arrival of emergency officials might have allowed time for the drug to disappear from Jackson's system. Indeed, although Murray reportedly admitted giving Jackson 25 mgs of Propofol, experts say such a small amount would not have been lethal and that it's likely Jackson got a much higher dose. If some of the drug HAD dissipated by the time Jackson got to a hospital, it would be tough to know for sure how much Propofol was actually given to Jackson before he died.

But a medical examiner would be able to determine that a bag of IV fluid had just been administered, which means Murray would have to explain why he thought Jackson needed urgent hydration more than an ambulance.

Whatever he's charged with, Murray will have a field day arguing the pop star caused his own death.

For example, he might try to argue that Jackson died because of his prolonged use of Propofol as a sleep aid. He might even claim that Jackson lied about what drugs he was using - and how often - and that this information made it impossible for Murray to know how risky it really was to give Jackson Propofol on the day he died.

But the prosecution will point out that no matter what Jackson said and did - a doctor has NO authority to give Propofol to a patient to help with insomnia. No matter how hard Jackson begged for the drug, Murray had a responsibility to say no. And the jury will be instructed that a homicide victim - no matter what he did to contribute to his own demise - cannot be blamed for another's person's deadly actions.

Jackson’s use of other drugs and demand for Propofol might be fair game in a civil suit for damages - where blame can be apportioned among many responsible parties - but in criminal court, the defendant is either guilty - or not. There’s no such thing as “partly guilty” and a prosecutor needn’t prove that Propofol was the SOLE cause of Jackson’s death. It’s enough if Murray’s actions were A cause. If the jury finds that what Murray did was also “reckless”, it’s at least manslaughter - which is defined as conduct that involves "a high degree of risk of death or serious bodily injury...or a gross deviation from the ordinary standard of care". It's hard to see how Murray's conduct doesn't fit.

It might even rise to the level of murder if the jury finds Murray's conduct was so beyond the pale, he acted with "malice"; a term of art in law that usually means "intent to kill" or "intent to do grievous bodily harm", neither of which appears to apply here - but "malice" also includes a rarely used "third-prong" definition, too, that allows jurors to convict on murder if the evidence shows that the accused did "an act creating a strong and plain likelihood that death or grievous harm will follow". This theory of implied malice is so close to manslaughter's recklessness standard, whether a defendant is guilty of murder or manslaughter is usually left to a jury to decide after a careful weighing of all the facts.

Proving either malice or recklessness won't be easy – but jurors will hear that Dr. Murray knew it was wrong to use Propofol in a private home - and that the law has no exceptions for sycophant-ish medical professionals who work for celebrities. The jury will also hear that Murray was neither an anesthesiologist nor an addiction expert, yet was providing anesthesia and giving addictive drugs to a guy with a very serious drug problem.

Bottom line – even without the toxicology report, it makes sense that the cause of death is "homicide" and that either a murder or manslaughter charge against Murray is likely - not because the victim was the “King of Pop ” but because it is profoundly disturbing that a man sworn to do "no harm" thought it was OK to put a human being into a coma to help him sleep.