MJ's doc: the endgame

Wanting to celebrate Halloween this year, you could of course have watched some of the tepid old horror films on DSTV. But to really have your blood chilled, you should have watched, on Sky News, the broadcast trial of Dr Conrad Murray for his deplorable role in the death of Michael Jackson.

The prosecution case was brilliantly constructed and delivered, by a highly competent pair of prosecutors and some outstanding witnesses. This should be available on DVD to train lawyers and witnesses. In contrast, the defence has been chaotic, illustrating how not to do it. The lawyers were clumsy and plodding, defiantly ignoring repeated rulings about their questions being out of order. Like some dismal lawyers I've experienced, they repeated themselves as though if they asked a question often enough, eventually the witness would give them the answer they wanted.

Contempt and sneaky games

The judge has been extraordinarily patient and indulgent with them - some judges I've testified before would have jailed the lot of them for contempt of court weeks ago. But even his patience is wearing thin. The star defence witness, Dr Paul White, will shortly face a contempt hearing for making rude remarks in court, and speaking to journalists despite the instruction not to do so. Then he was fined $1000 for even worse misconduct. The defence, hoping not to have Murray testify, have been trying to sneak in further self-serving comments from Murray through naive witnesses such as Dr White.

As an expert witness, I have the privilege of stating my opinion about the facts of the case which are in evidence; other witnesses must stick to the facts of what they saw and did. They may not testify (except in some very special circumstances) about what anyone else said - that's hearsay, and rejected. As a doctor I may testify as to what a patient told me (say, about their headaches) without this being excluded as hearsay, because taking a medical history is integral to my professional expertise.

But where the accused chooses not to testify (avoiding the risks of cross-examination or facing evidence that contradicts his claims) he may not abuse the role of his own expert witness by chatting to that person, so his claims can be sneaked into court within the expert's evidence, without being accessible for testing by cross examination. An ethical expert witness would be extremely careful to try to avoid this happening. Dr White fell into this trap.

Total loss of credibility

White has a good CV and has had a successful career with some mild prestige. But he seems willing to throw this all away for the sake of Dr Murray, to whom he shows far too much personal fondness, and to defend  propofol, a drug to which he also has too strong an emotional attachment. He seems to be ready to go alarmingly far to defend both of these.

Cross-examined, he regularly defended the indefensible. For instance, he suggested that medical records are unnecessary except for medico-legal reasons or billing. He trembled on the brink of placing himself in serious question as an ethical practitioner, only drawing back from the brink when some of the worst examples of Murray's crass negligence were applied to him. He struggled to avoid criticising Murray's awesome sequence of dereliction and carelessness, and only in self-protection agreed that he himself would not have behaved in the same way.

He was wildly evasive, ducking and diving, avoiding giving a straight answer whenever he could get away with this. He would elaborately answer a question he had not been asked, while ignoring the real question. When any witness is this evasive and shifty, it defeats his purposes; it becomes hard to believe anything he says. After listening to Dr White for an hour, if he told us it was raining outside, I wouldn't pick up my umbrella.

Should an expert witness be ashamed of being paid?

He admitted he "usually" charges $3500 a day. Though this would then usually earn him over $42000 for this trial, he muttered something like "but they don't have the money". He reluctantly admitted to having received $11,000 thus far, but looked sweaty when asked what more he expected to receive. There's no need to be so uneasy about being paid as an expert witness - it takes a lot of time and hard work, and any professional deserves to be paid for their time. Indeed, it could be considered suspicious not to expect some payment, implying one might have ulterior motives to want to be involved (the court needs a genuine expert, but not a fanatic).

The expert's primary task is to help the court understand complex and technical aspects of the facts of the case. You don't take on such a task to defend a pretty little drug you're rather fond of, or to assist a colleague you think is wonderful. When challenged, one may need to remind the court (and, perhaps yourself) that you are being paid for your time and work, and not for your opinion. That must be based on a neutral and unbiased application of expert knowledge, and should never be on sale.

When witnesses behave badly

White's answers were so persistently non-responsive and obviously evasive, that you have to admire the prosecutor for not losing his cool and throwing furniture at the stubborn little man. It's apparently routine practice in California for the judge to try very hard to avoid letting the jury know when a witness is misbehaving, so he carefully shoos them out of the courtroom before scolding him.

But surely it's only fair that they know when a witness is defying normal procedures - this may be important when they have to evaluate what weight to place on his evidence. Judges unwisely assume that when they say: "Disregard that last remark" the jury will actually ignore it. But they can't un-hear what they heard, nor forget it.

White eventually, reluctantly, admitted the obvious: that he had been assuming that every single word of Murray's police statement was true. One can't assume that a defendant will be totally truthful when trying to excuse himself. Oddly, Dr White never submitted a proper expert report to the court. That is normal practice, and disclosed to the prosecution so they could properly prepare cross-examination. Apart from a very brief letter stating some of his initial impressions, White took care not to do so.

His other major error was that he allowed Flanagan, the snowy-haired defence lawyer to commission research, not only some that was potentially dangerous to beagles, but some highly complex computer models and calculations by a mysterious woman with an odd name who, amazingly, had not been asked to testify at all. White testified to extreme and rigid conclusions based on this material, but his balloon was popped when the Prosecutor's questions revealed that he clearly didn't understand them properly, and he backed away from them.

As an expert you can quote and reveal any number of references and materials from other experts, books, and so on, which you rely on in forming and justifying you opinion. But for Pete’s sake, Paul, you are expected to have actually read and understood them.

He tended to ignore the jury, and looked like a grumpy and greasy gnome. He may have sunk the Defence case.

(Professor M A Simpson, aka CyberShrink, November 2011)