Soon after learning of the pop singer’s death, his fans in the United States and all over the world were in dismay and wonder what caused the untimely passing of the pop icon. Weeks after, his fans began to learn of the circumstances surrounding his death, his contact with Dr. Conrad Murray, and the physician’s role in the eventual death of the pop icon. Most hurt and in bereavement were Mr. Jackson’s families and his fans that had earlier purchased the tickets to see his presumed final concert in London.
Two years since his death, Michael Jackson’s physician Dr. Conrad Murray, has been charged with involuntary manslaughter in the death of Mr. Jackson. His crime, for administering a deadly dose of Propofol marketed as Diprivan, a short intravenously administered hypnotic agent mainly used in general anesthesia, which led to the death of Mr. Jackson. Many of his fans in the United States and around the world are outraged that Dr. Murray is only facing a charge for involuntary manslaughter rather than murder. To know why, it is important to understand the criminal law and why such a case is mitigated as manslaughter and not murder as many want.
Under American criminal law and jurisprudence, homicide is considered the unlawful killing of another. Nonetheless, not all homicides are crimes. It is possible to cause another’s death accidentally that is, accompanied by no intent, giving rise to no criminal liability. Criminal homicide takes place when one takes the life of another in such a manner proscribed by law. However, not only intentional killing is proscribed; Under the Model Penal Code, purposeful, knowing, negligent and reckless homicides may be punished. In this case, Dr. Murray has been charged with involuntary manslaughter (negligent homicide) and not murder; so, the question is why?
Initially at Common law, all kinds of murders were punished equally; the slayer was executed. But as time goes on, the courts and judges realized the common law rule was too harsh, the belief was that not all homicides should be punished equally. Based on this notion, homicides were divided into murder and manslaughter. Murder at common law, is the: (1) unlawful killing of; (2) another with; (3) malice aforethought. The requirement of malice aforethought differentiates murder from manslaughter. Nowadays, different jurisdictions in the United States have different definition for the element of malice aforethought. However, the following homicides are recognized as murder at common law: (a) when the defendant intended to cause the death of the victim; (b) when the defendant intended to cause serious bodily harm to the victim and death is a result; (c) when the defendant created an unreasonably risk of death which caused the victim’s death or the (depraved heart killing) and; (d) under the felony murder doctrine that is, death as a result of unlawful act such as a serious felony.
The presence of malice distinguishes murder from manslaughter. Since murder is the unlawful killing of another with malice aforethought, therefore, manslaughter is the unlawful killing of another but in this case, without malice. Malice simply means the absence of justification, excuse or mitigation for the homicide. All murders not of the first degree, is of the second degree, which includes homicides under circumstances of depraved heart, and a disposition of mind regardless of social duty but where no intention to kill exists or can be reasonably found. Therefore, in all cases of murder, where no intention to kill is present or can be inferred or gathered from evidence, the verdict must be murder in the second degree under which manslaughter exists.
Manslaughter therefore, is the unlawful killing of another without malice expressed or implied; it may be of two categories: (1) voluntary manslaughter in a heat of passion or (2) involuntary manslaughter, in the commission of an unlawful act. Dr. Murray has been charged with involuntary manslaughter the second category above. For Dr. Murray to be charged with murder in the first degree the prosecution must prove malice in the death of Mr. Jackson; and not only that, the prosecution must also show that Dr. Murray intended to kill the pop icon. It must show beyond reasonable doubt that Dr. Murray premeditated the killing and did kill Mr. Jackson as a result. In this case however, such evidence is missing, looking at the circumstances surrounding Mr. Jackson’s death, it is clear no intent to kill is involved, physicians are notable individuals and the importance of their duty is in saving people’s lives and moreover, there exists no reason or motive why Dr. Murray would intend to kill Mr. Jackson so as to find him liable for murder in the first degree.
The prosecution has been quick to realize that, charging Dr. Murray with murder is highly remote and difficult to prove therefore, the prosecution’s best bet is to charge Dr. Murray with manslaughter negligent homicide. Negligent homicide charge is possible in this case as charged because; there is the presence of an unlawful act. The unlawful act in this case, may be the illegal administration or use of propofol a drug mostly used by anesthesiologist. Medical malpractice law teaches of the existence of what is known as doctor-patient relationship therefore, a doctor has a duty of care to his patient. There exists a standard of care required of all medical practitioners with regards to their patient; a physician who violates such standard of care whether by omission, action, or inaction may be found liable in negligence.
Whether Dr. Murray is guilty of manslaughter (negligent homicide) or not is a question for the trier of facts (the Jury) to determine. A determination must be based on the facts of the case both real and circumstantial evidence. If the prosecution can establish that based on the evidence and facts Dr. Murray breached his duty of care in administering propofol to Mr. Jackson, he may be culpable for the manslaughter of the singer. However, as earlier indicated, a charge of murder is very unlikely in such cases. So far, Dr. Murray is only facing a charge under criminal negligence for engaging in an unlawful act of administering propofol to the victim, causing his death. If found guilty based on evidence, Dr. Murray may face a prison sentence but that may not be the end of the story.
So far the defense attorney is claiming Mr. Jackson self-administered the drug that cost his life; this may be a weak defense since it may be difficult to prove. Even if Mr. Jackson had self-administered the propofol, how did he lay his hands on the drug? What evidence does the defense have to show he indeed gave himself the drug so far, there is none convincing. The case will come down to if the defense can prove Mr. Jackson gave himself the drug but this can still be rebuffed if the prosecution can show that Dr. Murray despite his defense still breached the duty of care required of a reasonable physician in such circumstances.
The fact that propofol is never used in-house but in the hospital for surgeries, the fact that more than required dosage was found in Mr. Jackson’s system, are part of the evidences that may doom Dr. Murray’s case but still, only the jury will make that determination. The prosecution’s claim that Dr. Murray was paid $100,000 per month as part of the evidence that money was his motive may not be convincing; why? Based on contract theory, two individuals may enter into whatever agreement they want which includes the amount to be paid for the services as long as the contract is not illegal, it will stand.
One defense Dr. Murray may use is that of undue influence if he can show by clear and convincing evidence that Mr. Jackson used his influence, power, and notoriety as a great artist such that he could not resist giving him propofol. Irrespective, this argument may not stand if the prosecution can show there is no such undue influence since Dr. Murray had the choice to breach the contract, stop working for Mr. Jackson and move on with his private practice. But if Dr. Murray can show that he relied so much on the income and that his livelihood is dependent on it, he may have an argument.
Whether Dr. Murray is found guilty or not in the criminal case, there is still the possibility of a civil law suit if the Jackson’s family decides to file one. In such a suit, the tort theory of negligence will apply; to establish negligence in tort, the prosecution must first show there exists: (1) a duty; (2) breach of duty; (3) proximate cause; (4) cause in fact and; (5) damages.
Based on the evidence so far, there is a doctor-patient relationship between Dr. Murray and Mr. Jackson; normally, such a relationship will establish a duty of care in most negligence cases therefore, since Mr. Jackson hired Dr. Murray to be his physician and Dr. Murray agreed, a duty of care is automatically established. Under such duty of care Dr. Murray is subject to the standard of care required of a reasonable physician in such circumstances to care for Mr. Jackson as a reasonable physician with adequate training would. Whether Dr. Murray breach the duty will be determined by the evidence in a jury trial however, if found guilty for negligence in the criminal case, that court’s decision may add weight to the prosecution’s charge in a civil suit and help establish that Dr. Murray indeed breached his duty of care to Mr. Jackson.
Even after prove of duty and breach of duty is established, the prosecution must show Dr. Murray’s actions in administering propofol, is the proximate cause of Mr. Jackson’s death. This means that Dr. Murray’s negligent acts must be the legal cause of death. The death must be a consequence of the act and not coincidence; the death must also be foreseeable which may not be difficult to prove since Dr. Murray being a practitioner is familiar with the adverse effect of a powerful drug such as propofol. Once the prosecution can establish proximate cause, it may not be difficult to show causation in fact and so far, based on all evidence, the victim suffered a damage which in this case is death.
The case is open; finding Dr. Murray guilty will depend on whether the prosecution can prove its case based on the evidences both circumstantial and real. But, the determination is for the jury. If the defense on the other hand can prove its case then Dr. Murray may walk however, such possibility is doubtful since he may have breached his duty of care. A conclusion of such means besides paying damages to the Jacksons, he may have to face the Medical Board to fight for his license.
Dr. Adeyemi Oshunrinade [E. JD] is a writer and published author; an expert in general law, foreign relations, and the United Nations.